slovakia_compliance_study_en

Conformity Study for Slovakia Directive 2004/38/EC on the right of citizens of the Union and their

family members to move and reside freely within the territory of the Member States

This National Conformity Study has been prepared by Milieu Ltd. in consortium with the Europa Institute, Edinburgh University under Contract No JLS/2007/C4/004-30-CE-0159638/00-31. The actual conformity checking was carried out in Slovakia by Zuzana Zajíčková and was concluded on 1 August. The study does not take into account any subsequent changes in EU law and national legislation and/or administrative practice. The views expressed herein are those of the consultants alone and do not necessarily represent the official views of the European Commission. The national report reflects that legal situation as it stands on 1 August 2008. No subsequent changes have been taken into account.

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Milieu Ltd & Europa Institute

Conformity Study Directive 2004/38/EC for Slovakia, 2008 3/75

ANALYSIS OF THE LEGISLATION TRANSPOSING DIRECTIVE 2004/38/EC ON FREE MOVEMENT OF UNION CITIZENS

TABLE OF CONTENTS

EXECUTIVE SUMMARY ......................................................................................................................... 5 ABBREVIATIONS USED ....................................................................................................................... 19 1 INTRODUCTION ......................................................................................................................... 21 1.1 OVERVIEW OF THE LEGAL FRAMEWORK IN ROMANIA.............................................................. 22 1.2 FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN SLOVAKIA ................................................................................................................................................ 23 1.2.1 Distribution of competences according to the national Constitution ................................. 23 1.2.2 General description of organisation of national authorities implementing Directive 2004/38/EC.............................................................................................................................................. 26 2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE 2004/38/EC................. 27 2.1 Definitions, family members and beneficiaries........................................................................... 28 2.2 Rights of exit and entry ................................................................................................................... 33 2.3 Right of residence ........................................................................................................................... 36 2.4 Right of permanent residence...................................................................................................... 54 2.5 Common provisions (Articles 22-26) ............................................................................................. 59 2.6 Restrictions on the right of entry and residence on grounds of public policy, public security and public health .................................................................................................................................. 62 2.7 Procedural safeguards against decisions restricting free movement (Article 15, and Articles 30-31).......................................................................................................................................... 65 2.8 Final provisions (Chapter VII) ......................................................................................................... 69 ANNEX I: Table of concordance for Directive 2004/38/EC ANNEX II: List of relevant national legislation and administrative acts ANNEX III: Selected national case law ANNEX IV: Application Forms





EXECUTIVE SUMMARY

1. Introduction The Slovak Republic is a unitary State. The legislation that transposed the Directive is valid and enforceable throughout the entire territory without any different regional rulings. The Slovak Republic belongs to the group of States with a continental system of law. The primary sources of law that are recognised as authoritative are codifications. The court decisions are frequently used for the purposes of interpretation of legislation.1 According to the Constitution of the Slovak Republic (the “Constitution”)2 the secondary EU legislation has precedence over laws in Slovakia on the basis of Article 7(2) and primary EU legislation has precedence on the basis of the Article 7 (5).

2. Introduction to the main particularities of the legal system of the Member State relating to the transposition of Directive 2004/38/EC.

In case of the entry and stay of the foreigners in Slovakia, the conditions of the movement of persons across external borders of the European Union, their entry and border controls are regulated in the Regulation (EC) No 562/20063. This regulation is binding on the basis of the Article 249 of the Treaty and directly applicable in all the Member States and it has the precedence over the national legislation. The provisions which are regulated by the Schengen Borders Code have been deleted from the Act 48/2002 on foreigners stay. Under Slovak law, transposition is done via generally applicable legal regulations. Most provisions of the Directive were transposed by Act 48/2002 Coll. on foreigners stay3 that can be deemed as the main transposing regulation. Some provisions were transposed by Act 647/2007 Coll. on travel documents4 and by Act 71/1967 Coll., the Administrative Procedure Act.5 Other supportive provisions can be found in the Constitution of the Slovak Republic (Act 460/1992 Coll.), Act 365/2004 Coll. on equal

1 However, as the Constitutional Court decided in its decision from 4 January 2007 (III ÚS 300/06) “although the legal conclusions of the general courts contained in the judgements have not the character of a precedents, binding another judges to decide identically in similar cases, opposite legal conclusions declared in analogue cases do not contribute to fulfilment of the main purpose of the principle of the legal certainty nor to the credibility to a fair trial (also in another case: IV. ÚS 49/06, the Constitutional Court declared that „notwithstanding the fact that in the legal order of the Slovak Republic the judgements of general courts do not bind another judges to decide identically in similar cases similarly, such situations, when courts in generically identical cases decide in an opposite manner, it subverts the effectiveness of functioning of the system of justice and it negates its elementary principle and basic presupposition – the request that the identical cases shall be decided identically)”. Unification and foreseeability of the court decision making became a part of the right to a court defence in sense of Article 46 (1) of the Constitution of the Slovak Republic and the right to a fair trial according to Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. 2 Act no. 460/1992 Coll. 3 Regulation (EC) No 562/20063 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) 3 Zákon č. 48/2002 Z.z. z 13. decembra 2001 o pobyte cudzincov a o zmene a doplnení niektorých zákonov, Uverejnené v Zbierke zákonov č. 23/2002 strana 518 (Act No 48/2002 on foreigners stay, Collection of laws No 23/2002, p. 518) 4 Zákon č. 647/2007 Z.z. z 5. decembra 2007 o cestovných dokladoch a o zmene a doplnení niektorých zákonov, Uverejnené v Zbierke zákonov č. 263/2007 strana 4622 (Act No 647/2007 on travel documents and modification and amendment of several acts, Collection of laws No 263/2007, p. 4622) 5 Zákon č. 71/1967 z 29. júna 1967 o správnom konaní (správny poriadok), Uverejnené v Zbierke zákonov č. 27/1967 strana 284 (Act No 71/1967 on Administrative Procedure (Administrative Procedure Act, Collection of laws No 27/1967, p. 284)



treatment in certain aspects and on protection against discrimination6 and in some more legal regulations. As under Article 40 of the Directive the transposition should have been done by 30 April 2006, it can be declared that the transposition of the Directive was done without delay. Act 558/2005 Coll., amending Act 48/2002, transposed most of the provisions of the Directive and entered into force on 15 December 2005.

3. Conclusions of the legal analysis of the transposing measures for Directive 2004/38/EC. As mentioned before, the main act transposing Directive 2004/38/EC is Act 48/2002 on foreigners stay. Several provisions have been identified as not fully in compliance with the Directive. In other cases, the terminology used is not fully in line with the Directive although the meaning and purposes of the Slovak terms are very similar to those of the Directive. The Table of Correspondence and the Conformity Study below both explains in detail the cases of non compliance identified. The present summary only contains the main non-conformity cases. Although many non-conformity cases have been identified in this executive summary only the most serious cases are discussed below. Regarding the definitions, no serious discrepancies were identified. It shall be noted that the Slovak Republic does not recognise registered partnerships. The Slovak legislation does not even recognise the marriage between the persons of the same sex, because the Act 36/2005 on Family defines in its § 1(1) marriage as union of a man and a woman. This means that in Slovakia accepted such marriages concluded in other Member States are not recognised. The definition of “family member” according to the Article 2(2)(d) of the Directive as the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b) is not transposed properly since the qualification that it be the ascending line is missing, so the Slovak legislation is seems to be more favourable. As a main problem, the expert sees the system of the Slovak Act 48/2002, which does not define the family members of those EEA citizens that are EEA citizens themselves. The definition of the family member is included in the §45b which concerns those family members of the EEA citizens that are citizens of third countries (not EEA and not Slovak citizens). a) Beneficiaries Part V of Act 48/2002 transposing the Directive indicates that the Slovak legislation on foreigners stay applies to a Union citizen, meaning those persons having the nationality of citizen of a European Union Member State, citizen of a party to the Agreement on European Economic Area and Swiss Confederation, and other than persons having the nationality of Slovakia. Therefore, Slovak citizens are not covered by the Act on foreigners stay and the family members of Slovak nationals have a different legal regime, pursuant to the § 35 and following of the Act 48/2002 (second part of the Act). This means that Slovak citizen who have exercised their right to free movement are not treated in the same way as other Union citizens. Based on ECJ case-law: Surinder Singh, C-370/90, there is one category of Slovak citizens to whom the Directive should apply as well as to their family members, namely Slovak citizens who have exercised their right to move and who have afterwards returned to the Slovak Republic. Their family members will have benefited from the Directive when residing in

6 Zákon č. 365/2004 Z.z. z 20. mája 2004 o rovnakom zaobchádzaní v niektorých oblastiach a o ochrane pred diskrimináciou a o zmene a doplnení niektorých zákonov (antidiskriminačný zákon), Uverejnené v Zbierke zákonov č. 153/2004 strana 3579 (Act No 365/2004 on equal treatment in certain aspects and on protection against discrimination, Collection of laws 153/2004 p.3579)



another Member State, and this should continue upon their return to Slovakia. Therefore, since the transposing legislation does not include these Slovak citizens, the transposition is incomplete. Slovakia applies the same regime to all Union citizens without differentiating whether they are family members of other Union citizen or not. The term used under Slovak legislation to refer to family members is “privileged foreigner” and it only covers third country family members. Act 48/2002 does not properly facilitate the entry and stay of other dependant family members or those requiring personal care due to health reasons. Reference to the serious health grounds is missing. In case of other beneficiaries (other family members), the Directive requires in Article 3(2)(b) the host Member State (in this case the Slovak Republic) to facilitate the entry and residence of the durable partner of the EU citizen. As described in the Conformity Study further on, this provision has not been transposed. Slovak law does not recognise this term. b) Entry for family members Family members who are not nationals of a Member State shall, according to the Directive, only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of the Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement. There is no requirement in Article 5(2) of the Directive that the residence card has to indicate the fact that the person is a family member of the EEA citizen. Instead, according to the §3(2) of Act 48/2002 the fact that the person is a family member must be stated in the residence card. The degree of the family relationship is not important (whether the family member is a brother or cousin etc.), it is only important that such a family member is dependant (for reasons of ill-health). The entry of the EEA citizen and his family member is facilitated as, according to the §6(1) of the Act 48/2002, the entry of the EEA citizen and family member of the EEA citizen may be denied in case they are considered persona non grata, or in case that there is a justified suspect that the state security, public order or public health are threatened or in case that such a person has no travel document or visa, if needed. If a family member of the EU citizen needs a visa, it is granted at the border free of charge. c) Notification of presence Regarding the required administrative procedures on notification of presence, Act 48/2002 appears to be less strict than the Directive. As the Directive, Act 48/2002 divides the stay into three categories – the stay of EEA citizens up to three months, stay for more that three months up to five years, and stay for more than five years. In case of the stay up to three months, the EEA citizen and his/her family member are required to notify their presence with the competent police authority within 10 working days of entry. There are no other obligations except from the one to hold a valid travel document. This obligation is not directly included in the Act 48/2002, but can be deduced from the § 3 and § 6 on entry and from §49(1)(c) of the Act 48/2002, pursuant to which each foreigner is obliged to demonstrate their identity and a right to stay at the request of a police officer. This obligation covers foreigners in general, including also the privileged foreigners. d) Residence for more than 3 months The stay for more than three months up to five years is in Act 48/2002 marked as the “first permission” stay. Stay for more that five years is marked as the “further permission” stay. It is obvious



that the term “permission” is inaccurate. The EEA citizen and his/her family member are entitled to stay in the Slovak Republic if all conditions are met. Following the above, the term “permission” has not been used correctly. In fact, the meaning of the provision of Act 48/2002 is in compliance with the Directive but the terminology has not been chosen accurately. An EEA citizen intending to stay in the Slovak Republic for more that three months may, but does not have to, register with the competent police authority. The Act 48/2002 does not require a compulsory registration in case of the EEA citizens. However the law does impose the obligation to register on family members who are not EEA citizens. Act 48/2002 does not include any specific requirements regarding the documents that shall be submitted upon application of the registration certificate or the residence card. For the first permission of the EEA citizen and the retention of right of residence of the EEA citizen, the police authority always consider the conditions for the stay as fulfilled. e) Family members Act 48/2002 divides the persons covered by this Directive into two groups: - European Economic Area citizens including their family members being also the EEA citizens; - family members that come from non-EEA countries regardless, whether they are accompanying or joining the Union citizen in the host Member State, or not (e.g. travelling alone being family member of the EEA citizen). Regarding the right of residence for more than 3 months, the Slovak legislation does not require the Union citizen to show that he/she has sufficient resources for him/herself and his/her family members. However, the Act 48/2002 requires a family member not to be a burden for the system of health insurance and social security insurance as general conditions. This is against the Directive since such condition could only be imposed when the Union citizen is not economically active, but enjoys the right of residence under Article 7(1)(b) or (c). On the other hand, it should be noticed that the Slovak legislation does not specify the source of incomes for the family member not to be considered a burden to the social security system. According to the Article 4 of the Act 48/2002 the Ministry of Interior shall specify the sum of financial resources pursuant to the regulation 562/2006 for covering the costs of the foreigner in the Slovak territory, but this provision shall not apply to EEA citizens and their family members. In case of the stay of the EEA citizen’s family member who is not an EU national, the family member should submit proof that he/she is not a burden to the social security and health insurance system. The police authority accepts as such proof the declaration of the family member (article 177 (2) of the Internal Regulation). f) Retention of the right of residence: the issue of custody and duration of marriage Another interesting point to raise is an incorrect transposition of Article 13(2)(b) and 13(2)(d) of the Directive regarding the custody of children of the EU citizen. The Directive enables the parties to agree on the mutual regime of custody of such child or children. However, under Slovak family law such agreement would not be enforceable. To be more specific, Act 48/2002 stipulates that the child shall be in custody pursuant to the decision of a competent authority. Such rule originates in Act 36/2005 Coll. on family, where even if the parents agree on the custody over the child, such agreement has to be approved by the court. Therefore, the agreement of the parents is not enough to ensure that the family member retains the right of residence. The agreement has to be confirmed by a court order. Such provision is not in compliance with the Directive.



Regarding the Article 13(2), the Act 48/2002 does not expressly state that the duration of the marriage shall be at least three years before initiation of the divorce procedure, but states only the required duration of three years without further specifications. As the divorce or annulment proceedings may last a longer period, or in the other hand, it may last for a very short time, especially without children, the transposition is not equivalent and therefore not entirely in conformity. As already mentioned, registered partnership is not recognised in Slovakia. g) Losing the right of permanent residence The right of permanent residence under Act 48/2002 shall be lost due to absence from the Slovak Republic for a period exceeding two consecutive years, which is in compliance with Article 16(4) of the Directive. The Act also includes other reasons which may lead to losing the right of permanent residence - if the person notified the competent authority the termination of the stay - if the person was administratively expelled - if the person obtained the citizenship of the Slovak Republic. According to the interpretation of the Article 21 of the Directive, only expulsions that have taken place may break the continuity of residence – such an explicit statement is missing in the Act 48/2002. h) Equal treatment (Article 24 of the Directive) Act 48/2002 does not directly include any provisions regarding the equal treatment. Act 365/2004 on equal treatment in certain areas and on protection against discrimination is the main cross-sectoral legislation regulating equal treatment and includes an equal treatment clause in line with the Directive. However, this act is not exhaustive. Other pieces of legislation, such as act 311/2001 the Labour Code, act 455/1991 the Trade Licences Act, act 5/2004 on Employment Services, act 131/2002 on Universities, etc. also include provisions on equal treatment. i) Documents under Article 25 of the Directive Another problematic issue is the transposition of Article 25. The Slovak law does not explicitly state that a document such as one of those specified in Article 25.1, may be made a precondition for the existence of a right or the completion of an administrative formality. An EEA citizen or his/her family members right of entry, may be rejected only if he/she is a persona non grata, or there is a serious threat regarding the public security, public policy, or if it is necessary to protect public health, or he/she cannot present a valid travel document or visa, if required. The possession of the residence document only facilitates the entry of the EEA family members, but it is not a precondition of a right to enter. j) Demonstration of the identity (Article 26) According Act 48/2002 a foreigner is obliged to demonstrate his identity upon request. Non-compliance with this obligation is a contravention for which the fine can be up to 50 000 SKK [1660 EUR]. Slovak citizens also have the obligation to prove identity upon request. This obligation is inserted in the Act 171/1993 on Police. Refusal to prove identity may result in detention. Thus, the transposing legislation imposes the same requirement on Slovak nationals and foreigners. However, the foreigner may be punished in case of a contravention by a fine up to 50 000 SKK [1660 EUR] and such a fine is not applied to the Slovak citizen. This regulation is in contradiction with the requirement of the Directive to impose for the same sanctions on foreigners as those imposed on own nationals for failure to carry their identity card. The Slovak citizen does not pay any fine, but can be arrested (not imprisoned) in the police department. Instead, the foreigner may be punished by a fine. This is not in accordance with the Article 12 of the EC Treaty.



k) Denial of the right to enter the territory According to Act 48/2002, an EEA citizen or his/her family member's right of entry may be denied not only if there is a serious threat regarding the public security, public policy or if it is necessary to protect public health, but also if person is a persona non grata, or if a person cannot present valid travel document or visa, if required. The automatic denial of entry is stricter. Provisions of Slovak law are in this case stricter. l) Expulsion (Articles 14 and 27-29) Article 14 of the Directive provides that an expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State. In the Slovak legislation the explicit prohibition to automatically expel a Union citizen's or his or her family member's after their recourse to the social assistance system is missing. Provisions regarding the expulsion were not transposed correctly. Act 48/2002 does not completely transpose the Directive’s requirements – e.g. the fact that an expulsion decision shall be decided on grounds of public policy or public security. In addition, provisions of the Act relate only to the right of permanent residence whereas the Directive also covers persons residing in the country before they acquire the right of permanent residence. Reference to imperative grounds of public security as in the Directive is missing. However, the term “permanent residence” should cover also the “first permission” and the “further permission” of the EEA citizen and the privileged foreigner, as it results from the legislative abbreviation in §34 (2) – the permanent residence is granted for the first time for five years “first permission“ and then for undetermined period of time “further permission“. The terminology of the Act in this regard is rather misleading. The wording of the Directive (Article 28.3) regarding the ban on expulsion except for on grounds of the public security, applies to both the person residing in a Member State as well as the minor. However, Act 48/2002 relates the public threat reasons only to the residing person, not the minor (except if the expulsion is necessary for the best interests of the child). m) Public health Article 29 of the Directive regarding the public health has not been transposed at all. List of diseases threatening public health should be provided in a generally applicable legal instrument issued by the Ministry of Health of the Slovak Republic. However, as confirmed by the Ministry of Health, such legal instrument has not been issued yet. The other problem is that the provisions stating which diseases can justify restrictions in freedom of movement are missing. The Slovak legislation has a provision that a sick foreigner with a disease threatening public health can not be expelled. This is a general provision regarding all the foreigners, not only the EEA citizens. n) Procedural safeguards Pursuant to Act 48/2002, the EEA citizen and privileged foreigner may submit an application to have the expulsion order lifted, putting forward arguments establishing that there has been a significant change of circumstances that justified the decision ordering the expulsion and the prohibition of stay that was imposed to him. The Act does not transpose the Directive's time limit for submitting an application, thus the act is more favourable. The person concerned shall have access to judicial and administrative redress procedure in the host Member State to appeal against or seek review of any decision taken against them on the ground of public policy, public security or public health. The Slovak legal system gives a general possibility to appeal against administrative decisions.



Reasons that may be invoked are specified neither in the Administrative code, not in the Civil procedure code. In general, any questions of law or fact can be invoked. According to Act 71/1967 on Administrative Procedure § 3 (4), “A decision of the administrative authority must result from a reliably verified status quo. The administrative authorities shall ensure that the decisions on factually identical or similar cases will not create unreasonable differences.” Pursuant to its § 34 (5) “The administrative authority evaluates the pieces of evidence according to its consideration, each piece of evidence individually and all pieces of evidence in their mutual connection.” According to §57(13) in connection to §57(7) of Act 48/2002 on foreigners stay, the police department is not entitled to expel administratively a foreigner who has obtained the residence permission, if the consequences of such a procedure would be detrimental to the private and family life of the foreigner, length of his stay and legacy to the country of origin. These quoted provisions should ensure that the decision is not disproportionate. o) Review of decisions Another provision that has been transposed incorrectly is Article 30(3) of the Directive. According to this article, the notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. The time allowed to leave the territory should be not less than one month from the date of notification. Instead, according the Act 48/2002 the foreigner to be expelled is obliged to leave the territory in the time limit determined in the decision. Such a time limit may not exceed 30 days from the date when the decision was issued, which is in clear contrary with the Directive.



SUMMARY DATASHEET

1. Transposing legislation Most provisions of Directive 2004/38/EC were transposed by Act no. 558/2005 Coll., which amended Act no. 48/2002 Coll. on foreigners stay and entered into force on 15 December 2005. Provisions governing the travel documents were transposed by Act no. 558/2005 Coll., amending Act no. 381/1997 Coll. on the travel documents. This Act entered into force on 15 December 2005. Act no. 381/1997 Coll. on travel documents was replaced by Act no. 647/2007 Coll. on travel documents. Act 48/2002 Coll. on foreigners stay and Act 647/2007 Coll. on travel documents are the main transposing acts. Supportive provisions can also be found in Act 365/2004 Coll. on equal treatment in certain aspects and on protection against discrimination. Procedural rules and safeguards are included in Act 71/1967 Coll. on the administrative procedure code. As under the Article 40 of the Directive, Member States were obliged to bring the provisions of the Directive into force by 30 April 2006, it might be declared that this provision was complied with and no late transposition occurred.

2. Assessment of the transposition

a) Incomplete transposition or non-transposition Article 3.2 (a)

The Act 48/2002 does not explicitly mention any serious health grounds that would require personal care of the family member by the Union citizen.

Article 3.2 (b)

Slovak law does not recognize the term "durable relationship". The term might be similar to the term "household" but they will be considered as equivalent only if specific requirements are met. This obligation is not included directly in Act 48/2002. It might be deduced from the Act 71/1967 Coll. on the Administrative Procedure, but a direct provision included in Act 48/2002 would be more appropriate and would be in the interest of the legal certainty.

Article 5(2) The accelerated procedure is not provided by the Slovak legislation. Article 6 These provisions were not explicitly transposed, but the unconditional stay, at least for

Union citizens, is guaranteed. Therefore, the gap is not considered to affect conformity for Union citizens. For their third country family members, the lack of transposition could create more serious problems since they do not have a primary right to free movement from the Treaty. The situation was assessed as ambiguous.

Article 7.1 (d)

The Act 48/2002 divides persons covered by this Directive into two groups: - European Economic Area citizens including their family members being also the EEA citizens - Family members that come from non-EEA countries. Family members being also the EEA citizens do not fall under any specific rules, but follow general provisions covering the EEA citizens There is not any specific transposing provision for family members being also the EEA or EU citizens.

Article 7(3) (c) Act 48/2002 does not explicitly include the provision that the status of worker shall be retained for no less than six months.

Article 9.2

Act 48/2002 does not include any specific deadline for submitting the application, but it might result from other provisions of the Act that hat the application for the first stay permission to a family member of Union citizen intending to stay in Slovakia for more that three months should be submitted in advance. This transposition could create



problems as it should be clear from the law that such application must be made before the deadline. It should be noted that the deadline for submitting the residence card application should be after the arrival. Instead, according to the Act 48/2002 it is vague.

Article 10.1

Slovak law does not set up any time limit for the police authority to issue the document on stay.

Article 10.2 (e)

Act 48/2002 does not explicitly mention health grounds. Slovak law does not recognize the term "durable relationship", it is similar to term "household" under Slovak law, but they are not equivalent in all cases.

Article 10.2 (f) Such provision was not transposed to Slovak legislation, the term "durable relationship" is not recognised

Article 12.2 second indent

Act 48/2002 has transposed this provision incompletely. The provision on members of the family already constituted in the host Member State is missing. A provision stating that the right of residence shall be retained on a personal basis is missing. According to §57(13) in connection to §57(7), the police department is entitled not to expel administratively the foreigner who has obtained the residence permission, if the consequences of such a procedure would be detrimental to the private and family life of the foreigner, length of his stay and legacy to the country of origin.

Article 13.1 Not transposed as the Slovak legislation does not include any specific conditions applying to the family members who are Union citizens. Since Article 7(1)(d) is transposed incorrectly, Union citizens who are family members of a Union citizen will have to fulfil the conditions of Article 7(1) themselves.

Article 13.2 (c) Act 48/2002 does not specify any circumstances. Article 13.2 (d) second indent and third indent

The provision on members of the family already constituted in the host Member State is missing. Also, a provision declaring the retention of the right of residence exclusively on personal basis is missing. The fact that the foreigner should not become a burden for the social security system (and not social assistance system) should be noted. However, according to § 45b (9), the first permission not cancelled in cases where the consequences of the cancellation would be disproportional to the reason, in particular with regard to the personal and family life of the foreigner. According to §57(13) in connection to §57(7), the police department is not entitled to expel administratively foreigners who have obtained residence permission, if the consequences of such a procedure would be detrimental to the private and family life of the foreigner, length of his stay and legacy to the country of origin. This wording implies that in such cases the evaluation is done on a personal basis.

Article 14(2) second indent

§ 54 (4) of Act 48/2002 only includes the Union citizens and not their family members who are not EU citizens

Article 14.3

The explicit prohibition to automatically expel a Union citizen's or his or her family members after their recourse to the social assistance system is missing.

Article 14(4)(b) An explicit prohibition on expelling the EEA citizen or his family members in the case that the EEA citizen or privileged foreigner entered the territory of the host Member State in order to seek employment, is missing,

Article 16.3

The transposition is incomplete, as Act 48/2002 does not expressly require the residence to be legal. The important reasons are not specified and the posting in another Member State are not listed in the Slovak legislation. The Act does not limit the military service to 12 months, in fact there is not time limitation for the military service. 12 consecutive months relates only to the important reasons not the military service.

Article 16(4) Except from the absence exceeding two years, the Act recognises also other forms of termination of permanent residence (stated in §45a (4) - the person notifies the respective police authority on the termination of his stay, the person was expelled or the person obtained the citizenship of the Slovak Republic).

Article 17.1 (c) Act 48/2002 does not contain any transposed provisions in this respect. Article 24.1

The transposition is incomplete as the Act 365/2004 on equal treatment applies to the EEA citizens and their family members, but its scope is not exhaustive.

Article 25.1 The Slovak law does not explicitly state that such documents (on residence) may under no circumstances be made a precondition for the existence of a right or the completion of an administrative formality. The possession of the residence document only facilitates the entry of the EEA family members, but it is not a precondition of a right to enter.

Article 27.1

Act 48/2002 does not include any statement that these grounds (on public policy and public health) shall not be invoked to serve economic ends.



Article 27.2 Act 48/2002 contains no express provisions that measures taken on grounds of public policy or public security shall comply with the principle of proportionality, based on the personal conduct of the individual, and that previous criminal convictions should not constitute grounds for taking such measures.

Article 27.3

Act 48/2002 transposed this provision incompletely. It does not include any exact time periods for obtaining such information about privileged foreigners. The requirement that such requires not be made as a matter or routine is missing.

Article 28 (1)

Act 48/2002 did not completely transpose this provision. The fact that an expulsion decision shall be decided on grounds of public policy or public security or the fact that state of health should be taken into account, is missing and it only relates to the right of permanent residence whereas the Directive also covers person residing in the country before they acquire the right of permanent residence. However, the term “permanent residence” should cover also the “first permission” and the “further permission” of the EEA citizen and the privileged foreigner as it results from the legislative abbreviation in §34 (2) – the permanent residence is granted for the first time for five years, “first permission” and then for undetermined period of time, “further permission”. The terminology of the Act in this regard is rather misleading.

Article 29.1

Act 48/2002 does not state the diseases that can justify restrictions in freedom of movement. A list of diseases threatening public health has not been issued yet.

Article 29.3 Act 48/2002 has transposed this provision. However, the limitation of three months after the arrival is missing and also the requirement that it should not be a matter of routine (the provision on the cases when informed consent is not required applies to both foreigners and Slovak citizens).

Article 31.2 Act 48/2002 does not list any specific grounds, only the case that the enforcement is suspended, if the immediate enforcement threatens with a serious damage.

Article 32.1 Act 48/2002 does not introduce any time limits – more favourable treatment Article 33.1

The transposition in Act 48/2002 is incomplete but it can be deduced from other legislation. The penalty does not apply to the EEA citizens and their family members who are also EEA citizens at all. Regarding EEA family members who are not themselves EEA citizens, the regulation ensuring that the scope for such penalty should be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin, is missing.

Article 33(2) No specific provision regarding the EEA family members who are not themselves EEA citizens, as regarding the EEA citizens this does not need to be transposed if 33(1) is not possible.

b) Incorrect or imprecise/ambiguous transposition Article 3(2)(a) Act 48/2002 does not explicitly mention any serious health grounds that would require

personal care of the family member by the Union citizen. Article 7.2

Act 48/2002 requires a family member not to be a burden for the system of health insurance and social security insurance instead of social assistance, and on the other hand does not specify the source, thus it may be argued that it is up to the EU or EEA citizen to provide sufficient resources for the family member. Furthermore, there is no importance, whether the foreigners are accompanying or joining the Union citizen in the host Member State, or not (e.g. travelling alone being family member of the EEA citizen).

Article 7.3 (a) to (c)

Act 48/2002 specifies the conditions for the retention of the right to stay separately for the employees and for the self-employed persons, and as such is not in full conformity with the Directive. The Act does not regulate the case that the work contract has not terminated and the inability to work is only temporal. Also, the Slovak legislation does not talk about the retention of the status of worker but of the retention of the right of residence.

Article 9.1 If the person in question meets all of the conditions, the police authority does not have any discretion as to whether to issue the document or not. However, Act 48/2002 requires that the individual should not be a burden for the system of social and health security, and



as such is not in conformity with the Directive. Article 11.2 The transposing provision relates to the duration of residence and not to the validity of the

card. Article 12.2 The first part of the provision is not correctly transposed; the Directive (art. 12(2) second

subparagraph) requires the individual to have sufficient resources for themselves and their family members not to be a burden on the social assistance system, instead, the Slovak legislation requires that such a person should not be a burden for the social security system.

Article 13.2 (a)

The Act 48/2002 does not expressly state that the duration of the marriage shall be at least three years before initiation of the divorce procedure, but states only the required duration of three years without further specifications. As termination of the marriage is considered to make the divorce or annulment decision valid, the transposition is not equivalent therefore there is not complete conformity. The duration of the marriage under the Act does not exactly correspond to the duration under the Directive. Registered partnership is not recognised in Slovakia.

Article 13.2 (b), (d) The transposition in Act 48/2002 is incorrect, due to the fact that Slovak law recognizes only the official authority's decision on custody, not the mutual agreement. The reason for retention of the first residence permission and the agreement between the spouses is missing.

Article 16.1 Ambiguous transposition. The legal instrument is called further stay permission, but in fact it is not a permission as such. In this case, the word permission does not correspond with wording of the Directive. However, the aim of the Act corresponds with the meaning of the Directive. The term permanent residence is used in the national provision is granted to the foreigner who has moved to Slovakia because of joining the family (first permission for the permanent residence) and after 5 years of stay such a foreigner may obtain further permission for the permanent stay. Second case are the foreigners who move to Slovakia because of work or study, etc. In this case, their first stay is not the first permission for the permanent residence, but the temporary stay, and after five years they may receive the permanent residence. Special provisions apply to EEA citizens and privileged foreigners, who obtain the first and the further permission for permanent residence. As such they are considered equal to Slovak citizens who acquire permanent residence as soon as they move to Slovakia with the intention of staying for more than 3 months, and enjoy rights connected with permanent residence in Slovakia, such as election right in municipality elections, etc. The residence of the Slovak citizens is permanent or temporary.

Article 16.4 Act 48/2002 recognizes more reasons for breaking the continuity of stay than the Directive. Two of them seem to be more restrictive than the Directive. However, according to the interpretation of the Art. 21 of the Directive, only expulsions that have taken place may break the continuity of residence – such an explicit statement in Act 48/2002 is missing.

Article 19(1) The police authority issues a confirmation of acceptance of the application on the spot, not the residence card.

Article 26 The foreigner may be punished in case of a contravention by a fine up to 50 000 SKK and such a fine is not applied to the Slovak citizen. This is a stricter treatment not in accordance with the Directive.

Article 28.3(a) Reference to imperative grounds of public security is missing. The wording of the Slovak act is much softer .

Article 28.3 (b) Wording of the Directive relates the ban on expulsion except from the public security threat reasons, to both the person residing in a Member State as well as the minor. The Act 48/2002 relates the public threat reasons only to the residing person, not the minor.

Article 30(3) According to the Directive, the time limit for leaving the territory shall be not be less than one month from the date of notification. Instead, according to the Act 48/2002 such a time limit may not exceed 30 days from the date when the decision was issued, which is clearly contrary.

Article 36 Disproportional character of the sanctions in relation to the infringements.



c) Minor instances of non-conformity

Article 6.1

Transposition of this provision is regarded as effective but incomplete, due to the absence of any explicit provisions in Act 48/2002. The Act in fact does not require any formalities other than the obligation to notify the stay, but an explicit provision in respect to the right to stay would be more suitable. Union citizenship is the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. Therefore the right of residence may be considered effective in case of the Union citizens.

Article 6.2

Act 48/2002 does not include any explicit provision in this respect, but it can be deduced from the Constitution, granting the legislation of European Communities precedence over the Slovak legislation. The Act 48/2002 does not include any requirements other that the obligation to notify the stay, explicit provision in respect to the right to stay would however be more suitable. The right of residence of the family members of the EU citizens derives from the right of residence of the EU citizens and not directly from the EU primary legislation.

Article 7.3 (c)

Act 48/2002 does not include any explicit provision that would grant the status for no less than six months. On the other hand, the Act does not include any other limitations regarding the retention of the status of worker or self-employed person.

Article 14.2 Act 48/2002 contains no provision indicating controversy. However, there is no fix indication of the amount of the financial expenditures. The obligation to prove that fact does not concern the EEA citizen, but only the family members of the EEA citizens who are not EU nationals. .

Article 14.4 (b)

Act 48/2002 transposed this provision incompletely, but effectively. An explicit prohibition to expel the EEA citizen or his family members in such a case is missing.

ABBREVIATIONS USED ECJ European Court of Justice MS Member State EU European Union EEA European Economic Area CA Competent Authority Act 48/2002 Act No 48/2002 on foreigners stay, Collection of laws No 23/2002, p. 518, as

amended



1 INTRODUCTION

This conformity study analyses in detail the provisions of Directive 2004/38/EC on the free movement of EU citizens in its consolidated version, and it compares it with the legislation in place in Slovakia.

Directive 2004/38/EC repealed the earlier directives on free movement of persons (Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC) as from 30 April 2006. EU citizenship gives every Union citizen the right to move and to reside freely within the territory of the Member States. The facilitation and promotion of this right, which is at the same time one of the fundamental freedoms of the internal market, is the objective of Directive 2004/38/EC. A second objective of Directive 2004/38/EC was to codify and review the various pieces of legislation and case-law dealing with this issue. Free movement as a fundamental freedom of the internal market Free movement is one of the fundamental freedoms of the internal market and can therefore only be restricted in a limited number of pre-determined circumstances. Thus, national legislation cannot adopt more restrictive legislation than provided for in the Directive. Directive 2004/38/EC introduces a uniform approach regarding the formalities that Member States can impose upon EU citizens residing in their territory. These formalities are expressly established in the Directive and restricted in function of the duration of the stay in the Member States. • For a stay of less than three months, the only formality a Member State can impose is the

presentation of a valid passport or national identity card. • For residence of more than three months, a Member State can only require the EU citizen to register

in the population register of the place of residence. This registration needs to be validated immediately if a certain number of conditions are complied with. The Member State can only require the EU citizen to present proof that he/she is a worker, self-employed person, and student or has sufficient resources not to become a burden upon the social security system of the Member State. Member States cannot lay down a fixed amount of what they consider to be “sufficient resources”, but must always take into account the personal situation of the person concerned. Family members of the EU citizen will have to present an identity document and proof of the family link to an EU citizen.

• After five years of continuous residence in a Member State, an EU citizen obtains a right to

permanent residence. The host Member State shall issue a document certifying permanent residence. A permanent resident has the right to be treated equally to a national of the Member State.

On the other hand, the Directive also determines and clarifies the only acceptable reasons for restriction of the free movement of citizens by Member State authorities, namely for reasons of public order, public security and public health. (For the interpretation and conditions of such exceptions, it is important to rely upon the case-law of the Court of Justice.) These measures guarantee a strong protection against expulsion for EU citizens who have been long-term residents in another Member State. Such measures need to be proportionate and shall always look at the personal conduct of the individual concerned which must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. In addition, the Directive establishes some procedural safeguards in case an expulsion decision is considered.



1.1 OVERVIEW OF THE LEGAL FRAMEWORK IN SLOVAKIA Slovak Republic belongs to the group of states with continental system of law. The primary sources of law that are recognised as authoritative are codifications. Only legislative regulations are considered as legally binding. However, in reality courts do pay attention to previous decisions, especially from higher courts, namely the Supreme Court of the Slovak Republic (Najvyšší súd Slovenskej republiky) and the Constitutional Court of the Slovak Republic (Ústavný súd Slovenskej republiky). Similar to court decisions, the opinions of scholars are not recognised as sources of law. They are not binding but only of advising nature. However, they are frequently used for the purposes of interpretation of legislation. As the Constitutional Court decided in its decision from 4 January 2007 (III ÚS 300/06), “although the legal conclusions of the general courts contained in the judgements have not the character of a precedents, binding another judges to decide identically in similar cases, opposite legal conclusions declared in analogous cases do not contribute to fulfilment of the main purpose of the principle of the legal certainty nor to the credibility to a fair trial”. In addition, in case IV. ÚS 49/06, the Constitutional Court declared that „notwithstanding the fact that in the legal order of the Slovak Republic the judgements of general courts do not bind another judges to decide identically in similar cases similarly, such situations, when courts in generically identical cases decide in an opposite manner, subvert the effectiveness of functioning of the system of justice and it negates its elementary principle and basic presupposition the request that the identical cases shall be decided identically”. Unification and foreseeability of the court decision making became a part of the right to a court defence in sense of Article 46 (1) of the Constitution of the Slovak Republic and the right to a fair trial according to Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Sources of Slovak law may, in general, be sorted pursuant to their strength: Pursuant to the strength, the sources of law may be divided into the following groups: - constitution, constitutional acts and international treaties transposed to the Slovak legal system via

a constitutional act - acts and international treaties transposed to the Slovak legal system via acts - governmental decrees - generally binding decrees issued by ministries and other central administrative bodies - generally binding decrees issued by local bodies of state administration. The Constitution of the Slovak Republic (the “Constitution”)7 and constitutional acts form the top of the hierarchy and express the basic social virtues of the Slovak legal system. Acts are normative legal regulations of the parliament, the National Council of the Slovak Republic (Národná rada Slovenskej republiky) (hereinafter the “National Council”), being the highest body of state power. The National Council passes the Constitution, constitutional acts and acts. Governmental decrees and decrees of ministries and other central administrative bodies serve as the executing legal documents and are issued in order to execute certain provisions of acts. All of these enumerated bodies issue the so-called universal legal regulations that are generally applicable, valid and enforceable within whole territory of the Slovak Republic. Acts passed by the National Council are executed by the government, ministries and other central administrative bodies. In this respect, the government is under Article 120 of the Constitution entitled to issue decrees within the scope of acts. However, the government is not entitled to extend the scope of acts, fill any legal gaps or change the meaning of acts. All forms of legal regulations have to be in compliance. The forms with higher legal strength determine the scope of the forms with lower legal strength. In case of non-compliance, the Constitution and related legislation include a certain procedures that shall be open in order to secure the compliance. 7 Act no. 460/1992 Coll.



According to the Constitution, namely its Article 7 subparagraph 2, Slovakia may, by an international treaty, which was ratified and promulgated in the way laid down by a law, or on the basis of such treaty, transfer the exercise of a part of its powers to the European Communities and the European Union. Legally binding acts of the European Communities and of the European Union shall have precedence over laws of the Slovak Republic. The transposition of legally binding acts which require implementation shall be realised through a law or a regulation of the Government according to Article 120 (2). According to Article 7 subparagraph 5, International treaties on human rights and fundamental freedoms, international treaties for whose exercise a law is not necessary, as well as international treaties which directly confer rights or impose duties on natural persons or legal persons and which were ratified and promulgated in the way laid down by a law, shall have precedence over laws. The secondary EU legislation has precedence over laws in Slovakia on the basis of Article 7(2) of the Constitution (Act no. 460/1992 Coll.) and primary EU legislation has precedence on the basis of the Article 7 (5) of the Constitution. Notwithstanding the fact that the explicit note on direct effect and applicability of the regulation is missing, according to the interpretation of the Constitution, the regulations are directly applicable pursuant to the Article 7(2) because there is no requirement to implement them through laws or internal regulations. These provisions of the Constitution are very important as they regulate the regime of the acquis communautaire in Slovakia. The secondary EU legislation has precedence on the basis of Article 7(2) and primary EU legislation has precedence over laws in Slovakia on the basis of the Article 7 (5) of the Constitution. Notwithstanding the fact that the explicit note on direct effect and applicability of the regulation is missing, according to the interpretation of the Constitution, the regulations are directly applicable pursuant to the Article 7(2) because there is no requirement to implement them through laws or internal regulations. In the Article 2 of the Constitution8 there is included another important principle of Slovak law which says that administrative bodies may act only under the Constitution, within its scope and in the way described by other acts. In this case it can be understood that the police authorities or any other bodies may not individually require any other conditions or obligations than those listed in applicable legislation.

1.2 FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN SLOVAKIA

1.2.1 Distribution of competences according to the national Constitution

The modern distribution of powers that applies in Slovakia divides the powers to execute the functions of the State between the parliament, government and courts, and thus separates the legislative, executive and judicial branch of powers. In Slovakia, the distribution of competences is introduced by the Constitution in its fifth, sixth and seventh parts. Under Article 72 of the Constitution, the National Council is the sole constituent and legislative body in the Slovak Republic. It is also the supreme body of state powers. The government is the executive body comprising of the prime minister and the ministers that execute their competences in certain fields of state policies. The third branch of powers, the judicial powers, is accredited to courts. The Head of the Slovak Republic is the president, who represents the republic in internal as well as external affairs and is a guarantee for the proper functioning of those bodies.

8 Act 460/1992 – the Constitution, Article 2 (2) “(2) State bodies may act solely on the basis of the Constitution, within its scope and their actions shall be governed by procedures laid down by a law.”



National Council As was mentioned, the National Council is the sole legislative body. Its competence can be divided into the following parts:

- legislative competence - supervision competence - competence to create state bodies - competence in the field of internal and international politics

The National Council is the primary body of state powers and the status of other state bodies derives from the status of the National Council. As an elected body it represents the sovereignty of the State and the citizens. The National Council discusses and passes the Constitution, constitutional acts and other acts. By exercising its legislative competence it regulates relationships in all fields of social, political and economical life in the Slovak Republic. The National Council is also the main transposing body. It passes acts that are the key transposing instruments. Transposition can also be done by regulation of the Government and by-laws that are issued by the competent Ministries, as secondary pieces of legislation. Legislative initiative belongs, under Article 78 of the Constitution, to committees of the National Council, deputies and government of the Slovak Republic. It means that only the enumerated subject may submit proposals of acts to be discussed and passed by the National Council. Practical preparation of drafts of proposed legislation is executed in cooperation with the particular ministry and other administrative bodies whose competences cover the proposed subject. Legislative procedure and details regarding creation of acts are governed by Decree no. 19/1997 Coll. on the Legislative rules of creating the legislation and Act no. 350/1996 Coll. on the Proceedings in the National Council of the Slovak Republic. Government and Ministries The government of the Slovak Republic (vláda Slovenskej republiky) (hereinafter the “Government”) is the supreme executive body defined by the Constitution in Article 108 as the “supreme executive body”. It represents political guidance under the public administration. It has legislative initiative and also its own legislative competence. The government is entitled by the Constitution under Article 120 to issue governmental decrees. Its legitimacy, as a body of public policy, is derived directly from the citizens of the Slovak Republic. The government creates and implements state policies. It executes public administration and guarantees its execution within whole territory of the Slovak Republic, with a specific focus on the organizational aspect. The government coordinates and checks all aspects relating to the executive power and, by implementing acts passed by the National Council, fulfils international, political, economical and other state interests. The government is entitled to direct administration of its governing competence only against subordinated public administration bodies. Activities of other, non-subordinated bodies can be influenced only indirectly, by governmental policies. The legal framework of the governmental competence is defined by:

- the Constitution in Article 108 - 123, - Act no. 575/2001 Coll. on organization of the government and central public administration,



- other specific legislation.

Ministers are members of the government. The exhaustive list of all ministries is included in Act no. 575/2001 Coll. on organisation of the government and central public administration. This Act not only lists all ministries and other central administrative authorities but describe also their competences. Under §11 a) of the Act, the Ministry of Internal Affairs is an central administrative authority of the Slovak Republic, governing, inter alia, entry to the territory of the Slovak Republic and stay of foreigners within the Slovak territory. Head of the Ministry of Internal Affairs is a Minister nominated by the President of the Slovak Republic subject to the proposal by the Prime Minister. In order to execute its competences the Ministry is entitled to issue generally binding decrees within the scope of its competences. It is also a legal entity that participates in the creation of the single state policy in the field of facilitating the entry to the Slovak territory, the stay of foreigners and issuance of identification documents and travel documents, executes this policy, executes state administration and fulfils other tasks pursuant to the applicable legislation. Under § 37 of the Act 575/2001, the Ministry is responsible for proper legal regulation of issues falling within its competence, in this case the entry to the territory of the Slovak Republic, stay of foreigners within the Slovak territory and issuance of identification documents and travel documents. It also prepares legislative proposals drafts that shall be submitted to the government. Activities of all ministries are controlled by the government. The Office of the border and foreigner police of the Slovak Republic is an organisational part of the Ministry that directly controls and supervises its activities when fulfilling duties relating to, inter alia, protection of state borders, fight against illegal migration, approving the stay of foreigners, expulsion and visas issues. The Office within the scope of its competence inter alia controls and supervises the activities of the border and foreign police officers, cooperates on drafting generally binding legal regulations, international agreements and assists on the transposition of the European Union legal rules. The Office is also the governing and supervisory body for the directorates of border and foreign police, directorate of border police and the police detention of foreigners’ body that execute the powers on territorial principle. The Ministry of Internal Affairs (Ministerstvo vnútra), Office of the Border and Foreigner Police (Úrad hraničnej a cuzineckej polície) and police (polícia) are under Slovak law authorities responsible for implementing most provisions of the Directive. Act 575/2001 Coll. on organisation of the government and central public administration, as amended, is the basic regulation that exhaustively enumerates ministries and central administrative authorities and describes their competences. Act no. 171/1993 Coll. on Police, as amended, describes the status and competences of police in the Slovak Republic. Police under §1 sec. 1 of the Act on Police forms armed troops that fulfil duties in the field of internal order, fight against criminality and duties arising from international obligations of the Slovak Republic. Its activities are also supervised by the National Council and the government. Police pursuant to § 4 sec. 1 of the Act 171/1993 is divided into various services, including the foreign police and border police. All of them fall within the competence of the Ministry of Internal Affairs. Except from the protection of order, under §2 sec. 2 of the Act 171/1993 the police is entitled to execute certain state administration duties. This provision refers to the Act 48/2001 Coll. on the



foreigners stay that is the key transposing regulation for the Directive. Under Act 48/2001 the police is entitled to ask a person to present travel document, register the stay of a person and to exercise any other activities presumed by the Act. Legislative transposition framework

Transposition framework is created by the following legislation:

- Act no. 19/2002 Coll. on issuance of approximation decrees of the government of the Slovak Republic, as amended

- Resolution of the government of the Slovak Republic no. 241 from 8 April 1997 approving the legislative rules of the government of the Slovak Republic, as amended

- Resolution of the National Council of the Slovak Republic no. 19/1997 Coll. on the legislative rules on creation of acts

- Resolution of the government of the Slovak Republic no. 512 from 13 June 2001, approving the debate procedure of the government of the Slovak Republic, and Directive on the preparation and submission of documents for the governmental debate, as amended.

These documents do not include direct provisions on how directives shall be transposed but include detailed provisions regarding the preparation of acts and other generally binding legal regulations and details on the legislative procedure. Transposition of the EU directives shall be carried out only through generally binding legal documents. Those include the Constitution, constitutional acts, acts, governmental decrees and decrees of ministries and other central administrative bodies. General principles that may be included in the particular directive have to be transposed through an act or approximation governmental decree.

A Directive can be transposed into more acts or other legal regulations.9 When the competent authority is transposing provisions that were not part of the Slovak legal order before, the responsible body will prefer transposition into one legal regulation.

The responsible body, when preparing transposition of a Directive, will first define corresponding provisions in existing Slovak legislation and examine their current compatibility with the provisions of the directive. Afterwards, the responsible body identifies those provisions that will be changed, amended or abolished. It will also take into account other legislative regulations that might require to be modified due to the transposition.

This structure and these rules are taken into account by the committees of the National Council, deputies, government, ministries and other administrative bodies during the preparation of drafts of legislation. 1.2.2 General description of organisation of national authorities implementing

Directive 2004/38/EC SLOVAKIA The Ministry of Internal Affairs (Ministerstvo vnútra), Office of the Borders and Foreigners Police of the Slovak Republic (Úrad hraničnej a cuzineckej polície Slovenkej republiky) and police (polícia) are the authorities responsible for implementation of the Directive under Slovak law . Act 575/2001 Coll. on organisation of the government and central public administration is the basic regulation that exhaustively enumerates ministries and central administrative authorities and describes their competences. Each ministry and central administrative body is responsible for certain social,

9 The term “legal regulations” means forms of legislation in general. It does not form any specific type.



economic and other activities in the Slovak Republic. Each minister is the member of the government of the Slovak Republic. Under § 11 a) of the Act, the Ministry of Internal Affairs is a central administrative authority of the Slovak Republic, governing, inter alia, entry to the territory of the Slovak Republic, stay of foreigners within the Slovak territory and issuance of identification documents and travel documents. . Under § 37 of the Act, the Ministry is responsible for proper legal regulation of issues falling within its competence, in this case the entry to the territory of the Slovak Republic, stay of foreigners within the Slovak territory and issuance of identification documents and travel documents. It also prepares legislative proposals, drafts that shall be submitted to the government. Activities of all ministries are controlled by the government. Office of the borders and foreigners police of the Slovak Republic is an organisational part of the Ministry that directly controls and supervises its activities when fulfilling duties relating to protection of state borders, fight against illegal migration, approving the stay of foreigners, expulsion and visas issues. The office controls and supervises the activities of the border and foreign police, cooperates on drafting generally binding legal regulations, international agreements and assists on the transposition of the European Union legal rules. Act no. 171/1993 Coll. on police describes the status and competences of police in the Slovak Republic. The police is, under §1 sec. 1 of this Act, an armed troop that fulfils duties in the field of internal order, fight against criminality and duties arising from international obligations of the Slovak Republic. Its activities are supervised also by the National Council and the government. The Police pursuant to § 4 sec. 1 is divided into various services, including the foreign police and border police. Except for the protection of order, the police are, under §2 sec. 2 of the Act, entitled to carry out certain state administration duties. This provision refers to the Act 48/2001 Coll. on the foreigners stay, which is the key transposing regulation for the Directive. Under this Act, the police is entitled to ask a person to present travel documents, register the stay of a person and to exercise any other activities included by the Act. Under the Constitution, state bodies, including the Ministry and police, are entitled to exercise only those activities that are presumed by respective legislation. 2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE

2004/38/EC Transposition, under Slovak law, shall be done through generally binding legal sources. These sources cover the Constitution, constitutional acts, acts, governmental decrees and decrees of ministries and other central administrative bodies. The provisions of Directive 2004/38/EC have been transposed via various acts. All of them are generally applicable within whole territory of the Slovak Republic and all of them are of the same legal strength. In case of the entry and stay of the foreigners in Slovakia, the conditions imposed on the movement of persons across external borders of the European Union, their entry and border controls are regulated in the Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). This regulation is binding on the basis of the Article 249 of the Treaty and



directly applicable in all the Member States and it has the precedence over the national legislation. The provisions which are regulated by the Schengen Borders Code have been deleted from the Act 48/2002 on foreigners stay. Under Slovak law, transposition is done via generally applicable legal regulations. Most provisions of the Directive were transposed by Act 48/2002 Coll. on foreigners stay10 (hereinafter “Act 48/2002”) that can be deemed as the main transposing regulation. Some provisions were transposed by Act 647/2007 Coll. on travel documents11 and by Act 71/1967 Coll., the Administrative Procedure Act.12 Other supportive provisions can be found in the Constitution of the Slovak Republic (Act 460/1992 Coll.), Act 365/2004 Coll. on equal treatment in certain aspects and on protection against discrimination13 and in some more legal regulations. Act 48/2002 describes the basic conditions regarding the stay of foreigners, including the EEA citizens in the Slovak Republic. It gives the police authorities certain competences. In this relation it is necessary to note that one of the most fundamental principles of Slovak law is that state bodies can act only under the applicable legislation and within its scope.3 It means that state bodies, including the police authorities, may not individually require meeting any other conditions or obligations than those explicitly listed in legislation. Under Slovak law court decisions are not considered as binding sources of law and are used only for the purposes of interpretation. The courts rule on civil and criminal matters and also review the legitimacy of decisions made by bodies of public administration and legality of decisions, measures or other actions of bodies of public authority, if laid down by a law. Regarding the stay of foreigners in general and especially the EEA citizens and their family members, Slovak courts have not developed a compact set of rulings yet.

2.1 Definitions, family members and beneficiaries Definitions: the concept of “family members” (Article 2) All definitions were almost fully and accurately transposed into national law. However, it is necessary to note, that Slovak law does not recognise registered partnerships at all, not only the partnership equivalent to marriage, therefore definition of the registered partner included in Article 2(2)(b) of the Directive is not applicable. The Slovak legislation does not even recognise the marriage between the persons of the same sex, because the Act 36/2005 on Family defines in its § 1(1) marriage as union of a man and a woman. This means that in Slovakia such marriages concluded in other Member States are not recognised. The definition of “family member” according to the Article 2(2)(d) of the Directive as the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); is not

10 Zákon č. 48/2002 Z.z. z 13. decembra 2001 o pobyte cudzincov a o zmene a doplnení niektorých zákonov, Uverejnené v Zbierke zákonov č. 23/2002 strana 518 (Act No 48/2002 on foreigners stay, Collection of laws No 23/2002, p. 518) 11 Zákon č. 647/2007 Z.z. z 5. decembra 2007 o cestovných dokladoch a o zmene a doplnení niektorých zákonov, Uverejnené v Zbierke zákonov č. 263/2007 strana 4622 (Act No 647/2007 on travel documents and modification and amendment of several acts, Collection of laws No 263/2007, p. 4622) 12 Zákon č. 71/1967 z 29. júna 1967 o správnom konaní (správny poriadok), Uverejnené v Zbierke zákonov č. 27/1967 strana 284 (Act No 71/1967 on Administrative Procedure (Administrative Procedure Act, Collection of laws No 27/1967, p. 284) 13 Zákon č. 365/2004 Z.z. z 20. mája 2004 o rovnakom zaobchádzaní v niektorých oblastiach a o ochrane pred diskrimináciou a o zmene a doplnení niektorých zákonov (antidiskriminačný zákon), Uverejnené v Zbierke zákonov č. 153/2004 strana 3579 (Act No 365/2004 on equal treatment in certain aspects and on protection against discrimination, Collection of laws 153/2004 p.3579)



transposed properly as the ascending line is missing, so the Slovak legislation seems to be more favourable. The Directive expressly says ‘if the legislation of the host Member State treats registered partnerships as equivalent to marriage’ so since this is not the case of Slovakia, absence of registered partnerships shall not constitute any problems. The partner in that case will be treated as “other family member” under Article 3(2)(b) of the Directive, however, under certain conditions, which are further explained in this study regarding the Article 3(2)(b). As a main problem, the system of Slovak Act 48/2002 does not define at all family members of those EEA citizens that are EEA citizens themselves. The definition of the family member is included in the §45b, which concerns family members of those EEA citizens that are citizens of third countries (not EEA and not Slovak citizens).

Beneficiaries and facilitation of entry and residence (Article 3) 1. Union citizens and Slovak citizens, and the structure of the Slovak act regarding family members According to Article 3(1) of Directive 2004/38, its provisions shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, as well as to family members as defined in point 2 of Article 2 who accompany or join them. Part V of Act 48/2002 transposing the Directive indicates that the Slovak legislation on foreigners stay applies to a Union citizen, meaning those persons having the nationality of citizen of a European Union Member State, citizen of a party to the Agreement on European Economic Area and Swiss Confederation, other than persons having the nationality of Slovakia. Therefore, Slovak citizens are not covered by the Act on foreigners stay at all and the family members of Slovak nationals have a different legal regime, pursuant to the § 35 and following of the Act 48/2002 (second part of the Act). This means that Slovak citizens who have exercised their right to free movement are not treated in the same way as other Union citizens. There is one category of Slovak citizens that are covered by the Directive on the basis of ECJ case-law Surinder Singh (C-370/90), namely Slovak citizens that have exercised their right to move freely by residing in another Member State, and then return to the Slovak Republic. They should be considered as Union citizen and their family members as “privileged foreigners”, and be covered by the requirements of the Directive. According to the article 173 of the internal regulation of the Office of border and foreigner police within the Ministry of Interior (“Ministerstvo vnútra Slovenskej republiky, úrad hraničnej a cudzineckej polície”) (hereinafter referred to as “Internal Regulation”) for purposes of the Act on foreigners stay, the citizen of the Slovak Republic is not considered as citizen of EEA and therefore the family member of the Slovak citizen can not be considered a “privileged foreigner”. However, according to the expert’s opinion, this interpretation does not result from the § 1 (2) of the Act 48/2002 on foreigners stay, defining the term of “foreigner” as everybody who is not a citizen of the Slovak Republic, nor from the other provisions of the Act 48/2002 where there is no definition of a family member. In this connectio,n it is worth to note that the family member (who is not a EU citizen) of the Slovak citizen who returned to establish himself/herself in Slovakia, does not enjoy the same benefits as the family member of the EU citizen of another EU Member State (for example an African father of a Slovak citizen in contrast to the African father of the Czech citizen residing in Slovakia). In the latter case, when the privileged foreigner needs a visa, it is granted without charge in the border. Instead, the family member of the Slovak citizen is not considered a privileged foreigner. A family member of the Slovak citizen resident in Slovakia is defined in § 35(1)(a),(b) of the Act 48/2002 as: a husband/wife of the Slovak citizen resident in Slovakia; a dependant family member in direct line of a Slovak citizen resident in Slovakia who is single (not married); or a child younger than 18 years old in care of a foreigner married to a Slovak citizen resident in Slovakia. Such a family member (defined more



strictly than the privileged foreigner) must fulfil more conditions than the privileged foreigner. These conditions are contained in the § 37 and are as follows: no previous condemnation, financial guarantee of the stay at least for one year, accommodation during the stay, health insurance, and documentation proving that the foreigner is not sick with a sickness threatening public health. The police department shall decide within 90 days. Slovak citizens are not covered by Act 48/2002, so this treatment of the family members of those Slovak citizens who return to establish themselves in Slovakia seems to be discriminatory in respect to the privileged foreigners. Family members of these Slovak citizens should be considered “persons enjoying the Community right of free movement”, as defined in Article 2 (5) of Regulation (EC) 562/2006 as Union citizens within the meaning of Article 17(1) of the Treaty, and third-country nationals who are members of the family of a Union citizen exercising the right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States applies. In Slovakia, the same regime applies to all Union citizens without differentiating whether they are family members of other Union citizen or not. The term used under Slovak legislation to refer to family members is “privileged foreigner” and it only covers third country family members. As for the family members accompanying or joining a Union citizen, there are two groups of such persons: - European Economic Area citizens including their family members from EEA countries. - Family members that come from non-EEA countries. Family members that are also EEA citizens do not fall under any specific rules, but follow general provisions covering the EEA citizens. The Act 48/2002 does not have any specific provisions for those who themselves are EU or EEA citizens, and are also family members of an EU or EEA citizen. These persons are entitled to stay in Slovakia due to their status of EU or EEA citizens, not the status of family member of a worker etc. Therefore the Act does not make any distinctions within the group of these persons. Family members that come from non-EEA countries are treated as so-called “privileged foreigners”. These persons are in fact foreigners but benefit from their status of family members of the EEA citizens. 2. Other family members Article 3(2)(a) requires Slovakia to facilitate entry and residence of family members other than those covered by Article 2 point 2, who are dependants or where there are serious health grounds that require personal care. Act 48/2002 transposes the provision of Article 3(2)(a) incompletely. Slovak law, in § 115 of the Act no. 40/1964 Coll. the Civil Code, introduces a term “household” which is described as a “permanent coexistence of two or more natural persons that jointly cover costs of their needs. Each natural person can be member of only one household.” The courts interpret the term household individually in each case focusing especially on the real intent of the parties to permanently, not temporally, live together and to share the costs (decision R 34/1988 p. 203, section 2, decision R 12/1968). Persons covered by this provision may be considered as members of the household, pursuant to fulfilment of the above mentioned conditions including living together and sharing of the costs. In order to be recognised as a household member, both conditions have to be met. Thus, this term may appear to be too rigid for the purpose of transposition of this provision. However, in case of dependants and persons requiring personal care these conditions can be, but do not necessarily have to be, met. Persons requiring personal care and dependants do not always have to meet the conditions for



creating a household. For example, a person requiring personal care does not necessarily have to share the costs with the other person. The conditions in order to be considered as a household would in this case not be met. Thus, if these conditions are not met, the dependants and the person requiring personal care cannot be considered as household members. According to the Internal Regulation, family members who are not EEA nationals should submit the following documents to prove their status:

- wife / husband of the EEA citizen: copy of the certificate of marriage and a copy of the document certifying the stay of the EEA citizen

- his/her child or a child of his/her wife/husband younger than 21 years old: a copy of the certificate of birth and a copy of the document certifying the stay of the EEA citizen

- his/her child or a child of his/her wife/husband in care (younger than 25 years old, continuously preparing himself/herself for the profession studying, or who cannot study or work because of sickness or harm - § 3 of the Act 600/2003 on contribution on child and amendment of the Act 461/2003 on social insurance): copy of the certificate of marriage, copy of the certificate of birth, copy of the document certifying the stay of the EEA citizen, the document certifying the necessity of care issued by the competent authority of another state or a certificate of study in Slovakia

- family member in direct line or family member of his/her wife who is dependant: the copy of the certificate of birth certifying the direct relationship with the EEA citizen, a copy of the document certifying the stay of the EEA citizen , a document certifying the dependency on grounds e.g. of health reasons etc. (the persons other than children as specified above, who are financially dependant on the EEA citizen, are not considered dependant for the purposes of the Act 48/2002)

- another family member who is dependant: the copy of the certificate of birth certifying the direct relationship with the EEA citizen, a copy of the document certifying the stay of the EEA citizen , a document certifying the dependency

- member of household of the EEA citizen: a document certifying the fact that the person is a member of household of the EEA citizen issued by the competent authority in another Member State or a declaration of the EEA citizen and a copy of the document certifying the stay of the EEA citizen.

Act 48/2002 does not properly facilitate the entry and stay of other dependant family members or those requiring personal care due to health reasons. Reference to the serious health grounds is missing. The transposition could be effective if the terms “serious health grounds strictly require the personal care of the family member by the Union citizen” would be interpreted that such a family member is “dependant”. According to the case-law of the ECJ, the status of ‘dependent’ member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence. This means that health grounds are not considered as dependence for the purposes of the directive 2004/38. However, according to the Internal Regulation (article 177 regarding the privileged foreigner first permission on stay), persons other than children less than 21 years old who are financially dependant on the EEA citizen are not considered dependant for the purposes of the Act 48/2002. According to the §3 of Act 600/2003 on contribution for a child and on amendment of the Act 461/2003 on social insurance, the dependant child is a child up to 25 years of age, continuously preparing himself/herself for the profession, studying or unable to study or work because of illness or injury. Pursuant to the replies of the competent authorities to the Questionnaire sent them by the Commission, the dependant person is a person dependant on health reasons. However, under relevant ECJ case law, the terms “serious health grounds that require personal care” and “dependant” are not equivalent, because dependency relates to the necessary material, not personal, care. Thus the transposition is incomplete. Slovak courts have not developed any set of decisions in this respect yet.



The Slovak law does not make any distinction between the relatives in direct line, the relationship is not limited to the ascending direct line. Article 3(2)(b) requires Slovakia to facilitate entry and residence of family members other than those covered by Article 2 point 2, who maintain a durable relationship with the EU citizen, duly attested. Slovak law in general does not recognise the term “durable relationship”. This term does not have its exactly corresponding Slovak equivalent. It is similar to the term household, introduced by § 115 of the Act 40/1964 Coll. the Civil Code. This provision states that the household is composed by persons that live together and share the costs of their needs. It is thus clear that, in order for a person to be recognised as a household member, it is necessary to fulfil both of the above conditions, not only one of them, – permanent coexistence with another person (persons) and sharing of the costs. Each natural person can be member of only one household. The courts interpret the term household individually in each case focusing especially on the real intent of the parties to permanently, not temporally, live together and to share the costs. There is no exact definition of permanency, nor any indication of time. According to judicial practice (decision R 34/1988 p. 203, section 2, decision R 12/1968). a coexistence may be considered as permanent if it indicates the serious intent of persons to live together not only temporary but permanently. However, no attest exists on the durable relationship according to the Slovak law. On the other hand, the term durable relationship probably is not conditioned in such a way. In fact, persons having a durable relationship do not necessarily have to live together and to share their costs. In case of the household members both conditions have to be met. Persons living in a durable relationship can, within the meaning of Slovak legislation, form a household, but not necessarily have to, this aspect depends on a particular examination of the situation of such persons. The term “member of the household” under Slovak law is not equivalent to the meaning of “durable relationship” under the Directive. Persons in durable relationship form a household only if the two above mentioned conditions are met. If these conditions are not met the persons in durable relationship cannot be considered as a household. It depends on examination of the particular situation. It thus cannot be assumed that these terms are equivalent. Based on the above, the transposition of Article 3(2)(b) appears to be incomplete because persons in durable relationship can, but do not inevitably have to, form a household. So the persons who are forming a household with the EEA citizen are treated as family members under Slovak law, therefore with the same rights as hardcore family members, but the children or family members of the member of the household who are not themselves forming a household are not treated as family members. The Directive requires Slovakia to extensively examine personal circumstances and justify any denial of entry or residence to persons covered by Article 3(2). A specific statement as included in the Directive, regarding the obligation to examine the personal circumstances that is required in the interests of legal certainty and of citizens’ rights, is missing. Supportive provisions can be found only in the general act on administrative procedure, the Act 71/1967. In fact, the administrative body is to some extent examining the circumstances, but an explicit provision is missing. An argument can be derived from the basic principles of administrative bodies’ conduct that are enumerated in Act 71/1967. These are deemed as the most fundamental principles serving also as general rules for interpretation of its contents and aim. One of these principles under §3(2) of Act 71/1967 is that administrative bodies in general are obliged to act in close cooperation with the parties to the proceedings and other persons that may be influenced and always offer them a chance to defend their rights and interests. This includes especially the right to submit proposals and to express their opinion in relation to the decisive grounds. Administrative



bodies are also obliged to provide the parties with assistance in order not to suffer any harm due to lack of knowledge of legislation. Another argument showing that administrative bodies are to some extent obliged to examine personal circumstances can be found in §3 (3) of Act 71/1967, stating that administrative bodies are obliged to examine each case relating to the proceedings responsibly and with due care, and to use to most appropriate means of handling the case. All administrative decisions have to, under §3(4) of Act 71/1967, be based on reliably gathered finding of fact. Act 71/1967 together with all of the above principles will however apply to foreigners stay, but a clear provision included directly in Act 48/2002 would be more appropriate in order to transpose the provision of Article 3(2) of the Directive accurately.

2.2 Rights of exit and entry Right of exit (Article 4) Article 4 on the right of exit of Union citizens and their family members was transposed effectively by §1(1)(a) and 3(1) of Act 48/2002. Act 48/2002 does not include any provisions that would limit the right to exit the Slovak Republic. According to the Article 2(2) of the Constitution the authorities therefore may not impede exit from Slovakia. According to the Schengen Code provisions, ID or passport are sufficient in order to enter or exit the Slovak Republic. The regime of the obligation to have visa is also governed by this Schengen Code. Act 48/2002 in its §1(1)(a) includes a cross reference to this Code. Provisions of the Schengen Code are not included directly in Act 48/2002, as the provisions of an EC Regulation have direct effect in the national legal order and as such, do not have to be transposed. For clarity, the Schengen Code is cross referenced from the Act 48/2002. The regime of issuance of passports is included in Act 647/2007 Coll. on the travel documents. Provisions of the Directive regarding the travel documents were originally transposed by Act 381/1997 Coll. on the travel documents that were replaced by Act 647/2007. The legal regime of IDs is included in Act 224/2006 Coll. on the identification documents. Under § 2(1) of this Act, an ID is an public document by which a citizen of the Slovak Republic proves his/her identity, nationality and other facts included therein. Each citizen of the Slovak Republic is obliged to have an ID after reaching 15 years of age. Both passports and IDs are considered as travel documents for Slovak citizens. The use of Slovak IDs as travel documents is conditioned as follows.

ID specimen 48, which used to be issued according to the Act 198/1948 is not considered as a travel document. Today it can be used by persons older than 70 years of age.

ID specimen 53 can not be used as a travel document, as this ID was issued between 1953 and 1960 in both Czech and Slovak versions and could include the specification “without limitation”. It is used until today by persons older than 50 years of age.

ID specimen 60 is also not a travel document. It was issued between 1960 and 1976 in both Czech and Slovak versions. It contains also the data on parents of the holder and could include the specification “without limitation”.

ID specimen 76 was issued between 1976 and 30/06/1985 in both Czech and Slovak versions. It contains also the data on parents of the holder and could include the specification “without limitation”. It is also not a travel document.



ID specimen 85 was issued between 01/07/1985 and the end of the 1991 in both Czech and Slovak versions. It contains also the data on parents of the holder and could include the specification “without limitation”. It is also not a travel document.

ID specimen 91 was issued between 1991 and 30/08/1993 in both Czech and Slovak versions. It contains also the data on parents of the holder and could include the specification “without limitation”. It is also not a travel document.

ID specimen 93 was issued between 01/09/1993 and 30/06/2008 and this ID is a travel document. The new EU format ID has been issued since 01/07/2008.

These provisions were transposed effectively. Right of entry (Article 5) Article 5 of the Directive obliges Member States to enable the Union citizens to enter their territory with a valid ID or passport, and with passport in case of the family members of Union citizens. No entry visa can be imposed on Union citizens and regarding third country family members, entry visa can only be required when so established under Regulation 539/2001/EC. There is no explicit provision in Slovak law recognising the right of entry of Union citizens and their family members as in Article 5(1)-(2) of the Directive. Therefore this transposition may be considered as incomplete. However, supportive arguments can be found in various acts, namely Act 647/2007 on the identification documents, Regulation 539/2001 and the Schengen Code. It is clear from the legislation that the entry of Union citizens and their family members can only be subject to having the necessary travel documents for the following reasons: • Slovak law provides an exhaustive list of grounds on which entry may be rejected: entry into the

territory of the Slovak Republic by an EEA citizen or the family member may under §6(1) of Act 48/2002 be rejected only if the person in question does not have any travel documents or does not have any visa if required14 (and this should be nuanced by Article 5(4) of the Directive correctly transposed by Slovakia, as will be shown below).

• By implication in all other cases leave to enter will be granted. Thus, a person may enter the

territory of the Slovak Republic if he/she has a travel document and visa, if required. In all other cases, the police authority is obliged to allow the person to enter the territory. Police authorities do not have any other discretionary powers in this respect. However, the police authority asks the Slovak Information Service “SIS” (secret police) for the information on the foreigner and if, according to their information, the foreigner presents a security risk, the police authority shall propose to the police director to refuse the application for the first permission for stay of the foreigner. The police authority also may ask the authorities of another state of the EEA for the information on previous police records about the foreigner in case of serious suspect on threatening the security of the state or of public order (such a request may be done within 3 months from the entry of the foreigner in Slovakia). The grounds of the justified suspect that the privileged foreigner would threaten the security of the state or public order will result especially from the knowledge of other departments of the Police, e.g. Office of the fight against the organised crime, therefore the suspicion should be documented in writing in such a way that the documents can be used in the court procedure.

This provision provides that the family member of the EEA citizen is exempted from the visa requirement if such a person is in possession of the valid document on stay, where is certified the family relationship. This provision applies to third country family members. Pursuant to the §7 (2) of

14 The Slovak legislation provides an exhaustive list of grounds to refuse entry. The other reasons foreseen by the Slovak legislation are: being a persona non grata or for reasons of public order, public security or public health. These aspects are analysed in detail when discussing the transposition of Article 27-29.



the Act 48/2002 the entry in Slovakia may not be refused to the foreigner who has the permitted stay in the Slovak Republic. The obligation to obtain a visa is in line with Article 5(2) of the Directive and only applicable in case of citizens of countries listed in the Regulation (EC) 539/2001. Although an explicit reference to this Regulation in Act 48/2002 is missing, Act 48/2002 clearly indicates that it is only regulating the conditions for entry and exit if these conditions are not regulated in Regulation 562/2006 (the Schengen Borders Code). The Schengen Borders Code refers back to Regulation 539/2001 to identify those countries whose nationals need a visa to enter the Union. In addition, both Regulations are directly applicable. The obligation under Article 5(2) of the Directive to exempt family members of Union citizens in possession of a residence card from the requirement to hold a visa has been transposed by Article 3(2) of Act 48/2002. If a person has proof of stay in the Slovak Republic, even an individual coming from one of the listed countries, then a visa is not required. While a clear statement would be more appropriate, the combination of all these provisions seems to ensure that the obligation to grant entry under Articles 5(1)-(2) has been effectively transposed. However, although visas are issued for free according to Act 145/1995 item 26 (as required by Article 5(2) second subparagraph), the Slovak legislation has not explicitly transposed the obligation to issue the visa as soon as possible and through an accelerate procedure. The transposition can be considered as incomplete on that point. It should be noticed that the visa has to be requested in advance. The facilitation procedure is included directly in Act 48/2002 in §14 and §14a and applies to all foreigners except from the EEA citizens. A foreigner applying for a visa must enclose a valid passport and a photograph with the application. In some cases, issuing the visa may be conditional on the possession of an invitation letter verified by the competent police authority. The decision whether to issue the visa shall be taken by the foreign representative body within 30 days of receipt of the application. The requirement to issue the visa cannot be legally enforced. A foreigner is not informed of the grounds for refusal to issue a visa, except for those family members of the EEA citizen who do receive this information. The police authority can issue a visa to a foreigner at the border pursuant to the Regulation (EC) No 415/2003. The privileged foreigner shall receive a visa free of charge, within 10 working days from the submission of the application to the embassy of the Slovak Republic, as well as a valid travel document, documents certifying the family relationship with the EEA citizen, or a document certifying the dependency. In case of issuance of visa for privileged foreigners at the border, the visa is issued immediately. Act 647/2007 Coll. covers the legal regulation of travel documents, and specifies those documents that have been considered travel documents under Slovak law. The Act recognises various types of travel documents: passport, diplomatic passport, service passport, travel card, travel document of a foreigner, substitionary document of the European Union and an ID if recognised by the respective state. Under Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), both ID and passport are accepted as travel documents. Article 5(3) –exit stamps Under Article 5(3), the host Member State shall not place an entry or exit stamp in the passport of a family member who is not a national of a Member State provided they present the residence card. This provision was not transposed explicitly, but through the reference to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). Under Article 10 of the Regulation, no entry or exit stamps are required if the family member presents a residence card.



Article 5(4) requires that the Member State gives the Union citizen and the family member a reasonable opportunity to obtain the travel documents if the person does not have them. This provision was transposed effectively by §6(2) of the Act 48/2002 however the wording is different. The term “give every reasonable opportunity” is transposed as “shall enable to obtain… within a reasonable time period or, by any trustworthy means, to prove”. Under Article 5(5) the Member State may oblige a foreigner to report their presence within its territory. The time periods shall be reasonable and non discriminatory. Transposition of this provision is effective. Act 48/2002 distinguishes between the status of foreigners, privileged foreigners and the EEA citizens in applying different time periods in the case of notifying the stay. In the case of foreigners, in general a three working day period applies, but in case of EEA citizens and their family members (the privileged foreigners) a 10 working day applies. The Directive does not provide for any explicit period. §49 sec. 2 of the Act 48/2002 outlines the obligation to notify the stay of the citizen of the EEA or the privileged foreigner. Failure to notify the stay results in a fine of up to 5.000 SKK [approx. 167 EUR] applicable to all persons. The sanction can be considered thus as non-discriminatory and proportional.

2.3 Right of residence

2.3.1 Right of residence for up to three months (Article 6) Article 6(1) requires the stay of a citizen of up to three months in a Member State to be unconditioned. The only obligation is to hold a valid travel document Transposition of Article 6(1) is effective but appears to be incomplete. The provision of Art. 6(1) requires Slovakia to guarantee an unconditioned stay of up to three months for the Union citizens. Union citizenship is the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. Therefore the right of residence may be considered effective in case of the Union citizens. It could be argued that this provision should be transposed explicitly. However, the expert considers that the guarantees for unconditional stay are sufficient. In the case of a stay of up to three months, the EEA citizen and his/her family member are required to notify their presence with the competent police authority within 10 working days of entry. There are no other obligations except from the one to hold a valid travel document. This obligation is not directly included in the Act 48/2002 but can be deduced from § 3 and § 6 on entry, and from §49(1)(c) of the Act 48/2002 pursuant to which each foreigner is obliged to prove identity and the right to stay at the request of the police officer submitting the travel document. The transposition is effective, but there is no explicit provision guaranteeing an unconditioned stay. This obligation covers foreigners in general, including also privileged foreigners. According to the Internal Regulation, in case that the accommodation facility does not register the EEA citizen, he/she is obliged to notify the stay in Slovakia within 10 working days from the entry, indicating the place and the duration of the stay. No further conditions are provided. Act 48/2002 divides the stay into the following categories: up to three months, more than three months (so called “first permission”) and stay after the expiration of 5 years of stay (so called “further permission”). In case of a stay of up to three months, the only obligation of the citizen or family member is to notify their presence in the territory as shown before. The Act does not include any other conditions or obligations. In case of the second type of stay, more than three months, the Act gives the citizen the possibility, not the obligation, to register the residence with competent authorities. On the other hand, family members are obliged to register (see below for further discussions).



Act 48/2002 does not include any conditions or obligations for up to three month stay. The requirement to hold a valid identity card or passport is not explicitly stated in the Act 48/2002, but can be deduced from Article 49 (1)(c) of Act 48/2002, pursuant to which each foreigner is obliged to prove their identity and right to stay at the request of the police officer by presenting a travel document, document of stay, or identification card. The latter may be issued by the Ministry of Foreign Affairs to individuals enjoying diplomatic privileges and immunities pursuant to international law. This obligation covers all foreigners, not only privileged foreigners, and covers the family members of Union citizens that are not nationals. The police authority will not accept an application for the first permission to stay in the case where the foreigner does not submit a valid travel document, or in the case where the foreigner has a status of persona non grata. The right of residence of the family members of EU citizens derives from the right of residence of EU citizens, and not directly from the EU primary legislation. However, according to § 45b (8) (b), the police department will annul the privileged foreigner's first permission if it establishes grounds for refusal of the first permission. According to §57 (1)(c)(1), the police department expels the foreigner and prohibits stay for up to five years, with a minimum of one year should the entry or stay of the foreigner in the Slovak Republic be illegal. According to the § 45b (9), the first permission cannot be annulled in the case where this would be disproportional to the grounds for cancellation of the first permission, in particular with regard to the personal and family life of the foreigner. The relevant evaluation is conducted on a case by case basis. Article 6.2 extends Article 6(1) to third country family members of the Union citizens so that they shall have the right of residence for up to three months, without any conditions of formalities other than the requirement to hold a valid identity card or passport. As in the case of Union citizens, this provision has not been expressly transposed, but the Slovak law can be considered in conformity with the Directive since the right to short-stay can be deduced from various provisions. Firstly, the right to stay of these persons can be deduced from the Regulation 562/2006, Article 5, according to which, family members of the EEA citizens are also enjoy the Community right of free movement. Secondly, the right to stay can be indirectly based on Article 7(2) of the Constitution, according to which legally binding acts of the European Communities and of the European Union have precedence over laws of the Slovak Republic. It should be noted that it is not a condition that the family member be accompanied by the Union citizen. Finally, the only requirement for third country family members is the obligation to report their presence, as indicated above in relation to Article 6.1. Thereafter, the only obligation is to register when the stay is for more than three months. The requirement to hold a valid identity card or passport as the only condition for residence for up to three months is not explicitly stated in the Act. However, as in the case of Union citizens it can be deduced from Article 49 (1) (c) of Act 48/2002, pursuant to which each foreigner is obliged to prove their identity and right to stay on request of the police officer. This obligation applies to all foreigners, not only the privileged foreigners, including family members of Union citizens who are not nationals. Therefore, no residence visa is imposed on family members. It should also be noticed that when the family member entered with a visa, since Slovakia applies the Schengen Code, this visa will allow the third country family member to remain in the country for three months. However, if the authorities find out, during their controls according to the § 54 of the Act 48/2002, that the person entered Slovakia illegally or stays illegally, this provides ground for an administrative expulsion for between one and five years.



2.3.2 Right of residence for more than 3 months (Article 7-13)

(a) Conditions under Article 7 • Preliminary remarks regarding the Slovak approach As mentioned before, the Slovak legislation only refers to third country family members, and as such treats all EEA citizens equally without differentiating whether they are family member or the primary subjects of the right of residence. Act 48/2002 divides persons covered by this Directive into groups:

- EEA citizens including their family members that are also EEA citizens - Family members of the Union or EEA citizens that come from non-EEA countries.

Family members that are also EEA citizens follow general provisions covering EEA citizens. The Act does not have any specific provisions for those who themselves are EU or EEA citizens, and are also family members of an EU or EEA citizen. These persons are entitled to stay in Slovakia due to their status as EU or EEA citizens, and not because of the status as family members. Therefore, Act 48/2002 does not make any distinctions within these groups of persons. Therefore, there is not any specific provision for family members that are also EEA or EU citizens. This could present a problem in some cases, for example for the child of a EEA citizen who does not study or work, or a wife or husband of a EEA citizen who does not work or study and is not a burden for the health and social system of Slovakia. However, in these cases the police authorities cannot request documents proving the fulfilment of the conditions stated in the § 45a of the Act 48/2002 on foreigner stay (according to the Internal Regulation). This means that family members that are also EEA citizens do not fall under any specific rules, but follow general provisions covering EEA citizens. Family members that are also EEA citizens and that do not work or study, must have sufficient financial resources to cover their stay, as well as health insurance. In case of EEA citizens and their family members the sum required to cover their stay is not specified, and as such each case will be treated individually. According to Article 162(2) of the Internal Regulation, the police authority cannot ask for any proof of sufficient financial resources of the EEA citizen. Act 48/2002 uses the term “permission to stay”. Although it has not been used correctly, the aim of the provision is retained. The legal instrument is called “permission”, but in fact it is not permission as such because within the meaning of Act 48/2002 it does not constitute any rights and it does not create any legal status. This permission has only declaratory power. In this case, although the word permission does not correspond with wording of the Directive, the aim of Act 48/2002 corresponds with the objective of the Directive. • Article 7(1)-The conditions This Article enables the citizens to reside in a Member State for more than three months if the conditions included herein are met. Transposition of this provision is incomplete. This provision was transposed by §45a(1) of the Act 48/2002, and it requires the citizen to either be a worker, a self-employed person, a jobseeker, a student with financial resources to cover their stay and health insurance, or an individual with financial resources and health insurance. The possibility of be a jobseeker, developed by the ECJ, is not explicitly included in the Directive, but it is a part of Act 48/2002. It is important to note that under Act 48/2002 there is no obligation for EEA citizens to register their stay. The registration is voluntary only and during registration the police authority cannot



ask for any proof of financial sufficiency or any document certifying the status of the foreigner. Act 48/2002 does not specify the type of education required to be a student, and thus the provision is broad enough to cover all levels and types of education. In general, education in Slovakia is governed by the Act 245/2008 on education (previously Act 29/1984 Coll. on the system of primary and secondary schools) and Act 131/2002 on universities. Act 48/2002 does not include any specific requirements regarding the documents that shall be submitted upon application of the registration certificate or the residence card. The absence of such requirements can be supported by one of the most general principles of Slovak law included in the Constitution, which stipulates that administrative bodies may only act under the applicable legislation and within its scope15. It means that police authorities or any other bodies may not individually require any other conditions or obligations than those listed in legislation. Unlike the Act 48/2002, the Directive presumes that the EEA citizens applying for the “first stay permission” shall present various documents proving that they meet all the required conditions, such as that they are employed or students etc. Such documentation is not required under Slovak law. The same applies also in the case of family members that are also EEA citizens. According to article 162 (2) of the Internal Regulation, the police authority does not require any proof of fulfilment of the required conditions. The police authority verifies the EEA citizens conditions in the police databases and in the case where the EEA citizen is a persona non grata, the police authority will not accept the application for registration (article 163 (4) of the Internal Regulation).The application is also not accepted in the case where the EEA citizen does not submit the travel document (article 163 (2) of the Internal Regulation). The form to be completed in order to obtain the first permission includes only basic data about the EEA citizen, such as personal data, education, and purpose of stay without requiring the address. Thus, no engagement letters, proofs of studying or other documents are needed. The police authority does not require any documents on accommodation (article 163 (8) of the Internal Regulation). For the first permission d the retention of right of residence of the EEA citizen, the police authority always consider the conditions for the stay as fulfilled. If a justified presumption that the EEA citizen does not fulfil the conditions for the first permission or for the retention of right of residence based on the first permission exists, the police authority may verify their fulfilment (§54 (4) of the Act 48/2002). This situation may occur in the case where the EEA citizen evidently lives in material scarcity (for example as a homeless). In such cases the police authority may expulse the EEA citizen administratively without determining a period for prohibiting stay (§57 (10) of the Act 48/2002). According to the Internal Regulation, the EEA citizen may come back to the territory of Slovakia whenever he/she wants. However, for the application for first permission the police authority requires that all conditions are fulfilled. • Article 7(2) includes the right of residence for more than three months to third country family

members. The transposition of this provision is incorrect. Act 48/2002 requires the family member not be a burden on the social system. The Directive does not include such a condition. Such condition appears in §45b (1) of the Act 48/2002. The Ministry of Interior shall provide the financial resources to cover the costs of stay of a foreigner in the Slovak Republic. This provision does not apply to EEA citizens and their family members. It might be argued that even if Act 48/2002 requires a family member not to be a burden on the health and social security system, it does not specify the source, thus it is up to the EU or EEA citizen to provide sufficient resources for his/her family member. As the proof of sufficient resources regarding the family member of the EEA citizen, is is enough that the privileged foreigner declares so in writing. However, there is no explicit provision stating that where the EEA citizen is a worker, he/she is able to maintain the family member and thus this declaration need not be requested from the family member. On the other hand, it should be noticed

15 Constitution, Article 2 (2) State bodies may act solely on the basis of the Constitution, within its scope and their actions shall be governed by procedures laid down by a law.



that the Slovak legislation does not specify the source of incomes for the family member. Therefore, it may be argued that it is up to the EU or EEA citizen to provide sufficient resources for the family member. However, the transposition is incorrect, because Article 7 of the Directive requires that the EU citizens have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence. Instead, the Slovak legislation requires that the individuals do not becoming a burden for the system of health insurance and social security insurance in the Slovak Republic. Social security system in Slovakia consists of three main fields: social insurance (consisting of health insurance, pension insurance, insurance in job seeking period, injury insurance and guarantee insurance) state social subventions and social assistance (consisting of systems of material need and social need). According to Act N. 599/2003 on assistance in material need, material need is a state when the income of the citizen and dependants does not reach life minimum, and the citizen and dependants can not ensure or increase the income by their own activity. The foreigner has the same position as the citizen (§ 3 of the Act 599/2003). The person in material need and dependants are not considered as persons in material need regardless of the fact that their income does not reach the life minimum, if they can ensure their basic life conditions and help themselves in material need with their property. A person in material need has a right to a contribution according to Act 599/2003. Whether a person is in material need is evaluated by the municipality as a case-by-case assessment. (b) Retention of the status of worker (Article 7(3)

Article 7(3) includes the situations where a Union citizen retains the status of worker or self-employed person even if he/she is no longer working. This provision is very important given the special protection and right that are granted by the Directive to workers and self-employed persons. Overall, the Slovak transposition under Article 45a sec.5 is incorrect since the legislation only refers to the retention of the right of residence but not to the retention of the status of worker. Apart from this basic problem in the transposition of the provision, other problems have been detected and some remarks should be made. For example, it should be noticed that the Act 48/2002 specifies the conditions for retention of the right of residence separately for workers and also for self-employed persons. This appears to be not in complete conformity with the Directive for the reasons that will be mentioned below. As already mentioned above, there are many benefits derived from the status of worker. However, the Slovak legislation does not make such a difference and no consequences result from this status for the family member. As already mentioned above in the part regarding the conditions, for the first permission of the EEA citizen as well as for the retention of right of residence of the EEA citizen, the police authority always consider the conditions for the stay as fulfilled. If a justified presumption that the EEA citizen does not fulfil the conditions for the first permission or for the retention of right of residence based on the first permission exists, the police authority may verify their fulfilment (§54 (4) of the Act 48/2002). This situation may occur in the case where the EEA citizen evidently lives in a material scarcity (for example as a homeless). In such cases the police authority may expulse the EEA citizen administratively without determination of the period of the prohibition of stay (§57 (10) of the Act 48/2002). According to the Internal Regulation this means that the EEA citizen may come back to the territory of Slovakia whenever he/she wants. However, as in the case of the application for the first permission, the police authority requires that the conditions are fulfilled.



Article 7(3)(a)-retention of the status of worker if he/she is temporarily unable to work as the result of an illness or accident. The Slovak transposition is incorrect. Article 7(3)(a) establishes that the Union citizen retains the status of worker if “he she is temporarily unable to work as a result of an illness or accident”. Under §45a sec. 5 of the Act 48/2002: “The stay of the European Economic Area citizen under the first permission is retained also if: a) the termination of the employment relation was caused by an occupational disease or accident at work, or if the self-employed person cannot temporarily execute his entrepreneur activity due to sickness.” As can be inferred from above, the Slovak transposition differentiates between workers and self-employed persons. The circumstances for retain the right of residence are different. These create problems of conformity. 1) “temporary inability to work” vs. “termination of the employment relation” The Directive only refers to a “temporarily” inability to work for both the worker and the self-employed person. However, under the Slovak transposition with regard to employees only the occupational disease or accident led to the “termination of the employment relation”. Therefore, the Slovak legislation is stricter than the Directive. Therefore, since the Slovak provision does not target the employee who due to an occupational diseases or accident is temporarily not able to work, but in general is still able to work, the transposition is considered as incorrect. 2) The regulation of self-employed persons The Slovak legislation does not refer to “accident” but only to “sickness”. As will be explained below “sickness” in this case is a general term and includes both illness and accident. Making a difference between a “standard” sickness or accident and “occupational” sickness and accident at work has a legal meaning only in case of the employee. §195 sec. 2 of Act 311/2001 Coll. of the Labour Code defines the term “accident at work” as a “damage to the health of the employee or death caused when carrying out occupational duties or by a short, sudden and violent influence of external effects.” This definition is also used by Act 461/2003 Coll. on Social Security. This Act introduces in its §8 sec. 2 a) the definition of the term “occupational disease” as “a disease listed in this Act that appeared as a result of carrying out the occupational duties or service duties or in direct relation with carrying out of this duties.” Within the legal meaning of these two terms, occupational disease and accident at work only affect employees. This provision thus results in further obligations for the employee and especially for the employer. Occupational disease or accident at work is regulated in Article 8 of Act 311/2001 Coll. on the Labour Code. Occurrence of an occupational disease or accident leads to liability of the employer. This provision therefore emphasises the protection of the employee in such a case. Another act applicable in this field is Act 124/2006 Coll. on the safety and protection of health at work. This Act includes detailed obligations of both employer and employee in the case of such accidents or diseases, including inter alia the obligation of the employer to notify such disease or accident to the respective Labour Inspection and Social Security authority.



In case of self-employed person there are no such further obligations. Inability to work results in both cases in contributions paid by the Social Security authority. The employee may also be entitled to contributions paid by the employer. To sum up, a self-employed person can also be unable to work due to an accident or disease. However the situation is from the legal point of view different from the case of the employee, where the inability due to these reasons is followed by further obligations. For this reason, the Slovak legislation only refers to “sickness” and not to disease. For this reason also, the Act 48/2002 distinguishes between the employee and the self-employed person.

• Article 7(3)(b): retention of the status of worker in case of duly recorded involuntary unemployment after more than one year employment

The circumstances of this provision were transposed effectively by Article 45a sec.5 b. For obvious reasons, this provision can only apply to workers. However, notice that Slovak legislation only refers to the right of residence and not to the retention of the status of worker, which makes the transposition incorrect.

• Article 7(3)(c): retention of the status of worker after completion of a fixed-term employment contract of less than one year or after becoming involuntary unemployed within the first 12 months

This provision is transposed incompletely. Article 7(3)(c) states that the status of worker shall be retained also in case of a person that is involuntarily unemployed after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months. Act 48/2002 does not explicitly include the provision that the status of worker shall be retained for no less than 6 months. Thus the transposition is not complete. It also does not contain any other provisions that would limit retention of the status of worker. Notice that the Slovak legislation does not talk about the retention of the status of worker but of the retention of the right of residence, which is a different. Otherwise, an unemployed foreigner would become a burden to the social security system and would not be entitled to stay in Slovakia. For this reason the provision is not more favourable. Registration as a jobseeker must be preceded by a registration as involuntarily unemployed. An involuntarily unemployed person has a different legal status to the voluntarily unemployed person only registered as a jobseeker. According to the § 105 (1) of the Act 461/2003 Coll. on Social Security, a registered jobseeker is “a involuntarily unemployed person who, receives a contribution for up to six months period of time.” The different status of a voluntarily unemployed and involuntarily unemployed person is based on the consequential relationship with social security authorities. The Act 461/2003 Coll. on Social Security declares equal status for all persons being Slovak citizens or EU and EEA citizens.

• Article 7(3)(d) – complete following the example of 7(3)(b)

Under this provision the status of worker shall be retained if the person embarks on vocational training and is unemployed.

This provision was transposed effectively by §45a(5)(c) - (d) of the Act 48/2002. This provision relates only to workers.



(c) Limitation of the personal scope of family members of students (Article 7(4)) According to Article 7(4) only persons specified in this provision shall have the right to reside as family members of a Union citizen that are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training. Act 48/2002 has not transposed Article 7(4). This could be considered as more favourable treatment since there is no express limitation in force. As already mentioned above, the family members of the EEA citizens who are themselves EEA citizens are entitled to stay in Slovakia due to their status of EU or EEA citizens and not because of the status of family member of worker or student etc. Therefore, Act 48/2002 does not make any distinctions between these persons. Regarding the relatives of the registered partner, there might be some difficulties in case that they are not living in the same household. In such case the treatment is not more favourable The Slovak legal system does not recognise registered partnerships. Therefore if the limitation included in Article 7(4) were in force, there would be some difficulties how to treat the dependants of the registered partner. The registered partner’s dependants may be considered as the household members. As was described in relation to Article 3(2) of the Directive, the status of a household member is to certain extent conditioned and thus it would be necessary to examine each case individually. The term household is introduced by § 115 of the Act 40/1964 Coll. the Civil Code. This provision states that the household is composed by persons that live together and share the costs of their needs. For further details please see the discussion under Article 3(2) on members of the household. Thus dependants of a registered partner can, but do not necessarily have to, form a household. This aspect depends on particular examination of the situation of such persons. If the dependants did not form a household, there could be some problems with their status and thus with the conformity. (d) Administrative formalities for Union citizens (Article 8) Article 8 provides that if a citizen intends to reside in a Member State, the Member State may require such a person to register with the competent authority. The deadline for such registration cannot be shorter than three months after entry. This provision also governs issuance of the registration certificate and the list of documents that can be requested by authorities executing the registration of citizens. Act 48/2002 does not require registration, it includes only the possibility of the first registration. As it is voluntary, there is no exact time period for registration or penalty for failure to register. The aim of §45a(2) transposing Article 8 is to say that if the applicant does not present a valid travel document (being the passport or ID), the police authority will refuse to accept the application for registration. However, it does not mean that the police will reject the stay. In fact, there are no other consequences. The role of police authorities in this case will not involve the execution of any discretionary powers. The only document that is required is the travel document. Slovak police authorities do not require any specific documents such as proof of studying, proof of employments, since the relevant form is very brief and contains only the following information: name, surname, previous surnames, date and place of birth, birth number, state of birth, citizenship, purpose of the stay, nationality, reached education, marital status, number and validity of the travel document, address of permanent residence abroad and the residence in Slovakia.



The same form and thus the same information is required when a EEA citizen is registering for the first stay and also for the further stay. However, the transposition results to be more favourable. Articles 8(1) to 8(3) were transposed effectively. • Documents to prove that the Union citizens meets the conditions for residence: Article 8(3) and

Article 8(5) Article 8(3) of the Directive is transposed by §45a (2), according to which the Slovak police should reject the application when no travel document is submitted. This may seem not to be in line with Community law, as interpreted in the Oulane judgment. But the Oulane judgement treats the case of recognition by a Member State of the right of residence of a recipient of services who is a national of another Member State, which may not be subject to the production of a valid identity card or passport, where his identity and nationality can be proven unequivocally by other means. Instead, in Slovakia, the registration is voluntary and a rejected registration application does not mean that the right of residence is not recognised. §6 (2) letter b) of Act 48/2002 states that the policeman give the EEA citizen or his family member adequate time to provide the travel document or to demonstrate in another reliable way that he/she has a right of free movement and residence. Under Act 48/2002, the EEA citizen may, but does not have to, apply for the first stay registration. The Act does not oblige to register; it includes only the possibility of the first registration. As the registration is voluntary only, there are not further requirements such as confirmations of engagement etc. The only requirement is a travel document, being either the passport or the identity card. The provision of Act 48/2002 covers all purposes of stay and does not introduce any specific conditions for other groups of persons or purposes of stay. Under Act 647/2007 Coll. on travel documents, passports are issued by police offices pursuant to the residence of the applying citizen or pursuant to the place where the application was submitted. Both passports and IDs are considered as travel documents for Slovak citizens. Use of Slovak IDs as travel documents is conditioned by the acceptance of IDs in the host state. Driving licences are not accepted under Slovak law. Only the documents enumerated in this Act are accepted. The provision of §45a sec. 2: “The application for the registration of the first permission by the EEA citizen shall be annexed with a travel document. If no travel document is presented, or the applicant is a persona non grata, the application will be rejected”. If the applicant does not present a valid travel document (being the passport or ID), the police authority will refuse to accept the application for registration, but it does not mean that police will reject the stay. In fact there are no other consequences. The role of police authorities is not executing of any discretionary powers. Again, as was described above, the term permission has not been used correctly, but the meaning of the Directive has been retained. However, according to the § 46 (8) of Act 48/2002, the document on stay contains the name, surname, birth number, and address of the foreigner in the territory of the Slovak Republic, place and date of issuing the document, date of expiration of the document on stay, kind of stay, picture and machine readable data. The document on stay may also contain the date and place of birth, citizenship, sex and the signature of the holder. The police authority issuing the document on stay must have relevant documents proving the facts stated in the document on stay. However, Act 48/2002 does not include a list of such documents.



As already mentioned above, the police authority always consider the conditions for the stay of the EEA citizen as hypothetically fulfilled. According to the Internal Regulation, the EEA citizen who asks for the first permission receives the document on stay on the basis of the official application. The police authority controls the completeness and correctness of the data stated in the form and makes a photocopy of the biometric data page of the travel document, asks for the photography and issues the document on stay for the period of 5 years. • Sufficient resources Article 8(4) This provision was transposed effectively by §4 of the Act 48/2002. No specific sum for the Union citizens. The Member State have to take into account the personal situation of the person. This is a guarantee for citizens and has to be transposed. The Ministry shall state a fixed sum that will apply to all foreigners except from the EEA citizens and their family members irrespective of their nationality and thus gives space for individual assessment of each case. (e) Family members who are not nationals of a Member State (Article 9-11)

• Administrative formalities (Article 9) Under Article 9, family members who are not nationals of a Member State should receive a residence card. The deadline for application is not less than three months from arrival date. Failure to comply with the obligations may lead to non discriminatory and proportionate sanctions. Issuing of the document on stay depends on the granting of the first stay permission, thus if the respective family member meets all the necessary conditions, the police authority does not have any discretion power whether the document shall be issued or not. However, the police department does not issue the first stay permission in case that the foreigner presents a security threat for the Slovak Republic. As already mentioned above, the police authority asks the Slovak Information Service for the information on the foreigner and if according to their information the foreigner presents a security threat, the police authority shall propose to the police director to refuse the application for the first permission for stay of the foreigner. The police authority may ask the authorities of another state of the EEA for information on previous police records about the foreigner in case of serious suspicion of a threat to state security or public order. The grounds for suspicion will result especially from the knowledge of other police departments, e.g. the Office for the fight against the organised crime. The grounds for suspicion should be documented in writing in such a way that the documents can be used in the court procedure. Under §45b sec. 1 The police authority shall grant the first stay permission to the foreigner that is not an EEA citizen and that intends to stay in the Slovak Republic for more that three months, if: a) he / she is a family member of an EEA citizen (hereinafter the “privileged foreigner”) and b) he/she is not a burden for the system of health and social security system in the Slovak Republic. Therefore, the condition that the privileged foreigner is not a burden on the health and social security system must be fulfilled. As commented above, this condition is not required by the Directive (see comments to Article 7(2) of the Directive above) and thus the transposition has been considered as not in complete conformity. Regarding the information published on the web site of the Foreign Police (http://www.minv.sk/?najcastejsie-otazky-15, in Slovak only), not being the burden shall be proved only by an affidavit, no other proofs (e.g. bank account records etc.) are required. This results also from the Internal Regulation, article 177(2). In addition, there is no specific deadline for submitting the application as required by Article 9(2) of the Directive. However Article § 45b (1) states that the police authority shall grant the first stay



permission to a family member of a Union citizen who intends to stay in Slovakia for more that three months. This implies that the application should be submitted in advance. In any case, this transposition could create problems as it should be clear from the law that such application must be made before the deadline. However, it should be noticed that Slovakia has not foreseen any sanction in case of not application for the card (Article 9(3) of the Directive). Therefore, an application after three months will not have any particular implications. The only sanctions established by the Slovak legislation are those relating to the failure to notify the presence in the territory. Finally, as already commented, this provision of Act 48/2002 again shows some inconsistencies with the Directive. It frequently uses the incorrect term permission and omits the term “residence card” used by the Directive. Instead it uses the terms first stay permission and further stay permission. Act 48/2002 does not introduce any specific documents that could be considered as equivalent to the residence card.

• Issue of residence cards (Article 10) Article 10 establishes the details for issuing a residence card to family members of a Union citizen who are not themselves Union citizens. Several problems have been detected in the way this provision has been incorporated into Slovak law.

• Article 10(1): Name of the card and issuance period

Article 10(1) requires the residence card to be entitled “Residence card of a family member of a Union citizen” and to be issued no later than 6 months from the date on which the application was submitted. A certificate of application must be issued immediately. The transposition carried out by Article 46(6) and 45b(4) of Act 48/2002 is incomplete. The Directive states that a document called “Residence card of a family member of a Union citizen” is to be issued within 6 months. The Slovak law does not set up any time limit for the police authority to issue the document on stay. The condition for issuing the document on stay (residence card) is the fact that the first permission for the stay was granted. The decision on the application for the first permission for the stay shall be issued within 90 days from the submission of the application. However nothing is said regarding the issuance of the card as such. It is regulated in the Internal Regulation, article 181 regarding the privileged foreigners, but it is not a generally binding legal instrument. Thus the transposition appears to be incomplete.

• Documents to be submitted (Article 10(2) Article 10(2) lists the documents that may be requested by Member States to prove that the family member meets the conditions to be granted the right of residence. Article 45b(3) only requires these documents to be submitted:

a) a travel document (being either passport or an ID) b) documents attesting the existence of a family relationship of a EEA citizen residing within the

territory of the Slovak Republic c) document or written declaration that such a person is a dependant family member or a member

of the household (except the cases of the following family members: spouse and his/her child younger than 21 years old or his child in care16

16 Child in care is younger than 25 years old, continuously preparing himself/herself for the profession studying, or which can not study or work because of sickness or harm - § 3 of the Act 600/2003 on contribution on child and amendment of the Act 461/2003 on social insurance



d) written declaration that the family member will not be a burden on the health and social security system in Slovakia.

e) photographs. The list is exhaustive. As can be seen, the Slovak legislation is more favourable since it requires less documents than those requested by the Directive. However, according to the Internal Regulation the family members who are not EEA nationals should submit two photographs and the following documents to prove their status: 1. documents attesting the existence of a family relationship of a EEA citizen residing within the territory of the Slovak Republic. Such documents are in case of

- wife / husband of the EEA citizen: copy of the certificate of marriage and a copy of the document certifying the stay of the EEA citizen

- his/her child or a child of his/her wife/husband younger than 21 years old: an official translation of the certificate of birth and a copy of the document certifying the stay of the EEA citizen

- his/her child or a child of his/her wife/husband in care: an official translation of the certificate of marriage, official translation of the certificate of birth, copy of the document certifying the stay of the EEA citizen, the document certifying the necessity of care issued by the competent authority of another state or a certificate of study in Slovakia

- family member in direct line or family member of his/her wife who is dependant: an official translation of the certificate of birth certifying the direct relationship with the EEA citizen, a copy of the document certifying the stay of the EEA citizen, a document certifying the dependency on grounds e.g. of health reasons etc. (the persons other than children as specified above, who are financially dependant on the EEA citizen, are not considered dependant for the purposes of the Act 48/2002)

- another family member who is dependant: an official translation of the certificate of birth certifying the direct relationship with the EEA citizen, a copy of the document certifying the stay of the EEA citizen, a document certifying the dependency

- member of household of the EEA citizen: a document certifying the fact that the person is a member of household of the EEA citizen issued by the competent authority in another Member State or a declaration of the EEA citizen and a copy of the document certifying the stay of the EEA citizen.

2. written declaration that the family member will not be a burden of the health and social security system in Slovakia. The Slovak law does not specify that the direct line of the relationship between the family members should be ascending. The police authority issuing the document on stay must have relevant supporting documents proving the facts stated in the document on stay. Act 48/2002 in §45b (3) a) also requires two photographs. Regarding the other family members subject to Article 3(2)(a) and (b) (Articles 10(2)(e) and (f) of the Directive), the only requirement under Article 45b sec.3 c) is to submit “a documentary proof or an affidavit evidencing that the person is a dependant or a household member, except from the family members indicated in sec. 2 a) and b). The problem with the transposition is the problems already mentioned in the transposition of Article 3(2) regarding “dependency” in relation to serious health grounds, and “durable relationship” in relation to household. If the terms “serious health grounds strictly require the personal care of the family member by the Union citizen” could be interpreted that such a family member is “dependant”, it could be considered as effective transposition, because it would fall within the scope of Act 48/2002. However, according to the case-law of the European Court of Justice, the status of “dependant” member of the family of a



holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence Similarly, since Slovak law does not recognise the term “durable relationship”, the Act 48/2002 does not require any proof of existence of durable relationship. However, the Slovak law includes proof of being a member of the same “household”. Thus persons living in a durable relationship can, but do not necessarily have to, be considered as forming a household. These two terms are similar but not always might be deemed as equivalent. Therefore, the transposition seems to be incomplete. Regarding a closer explanation of the term household, please see the discussion to the Article 3(2) of the Directive.

• Validity of residence cards (Article 11) Article 11 provides for the period of validity of residence cards and provides that certain temporary absences will not render the card invalid. This Article was transposed by §46(6) and §45e of the Act 48/2002. The provisions of §45e talk about the retention of the residence. The validity of the card is linked to the validity of the residence according to the Article 11 of the Directive it “shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years”. According to the §46(5) (EEA citizens) and §46(6) (privileged foreingers) the validity of the document on stay (residence card) is up to five years. However, the transposing provision relates to the duration of residence, not to the validity of the card, which makes transposition incorrect. The Act 48/2002 does include in the uninterrupted stay an absence of 12 consecutive months due to important reasons. These reasons are not specified, thus the space for individual assessments remains open. The Act does not limit the military service to 12 months. The 12 consecutive months relates only to the important reasons not the military service. Article 11(2) of the Directive - the reference to posting is missing. The list of examples of important reasons is missing, not only the reference to posting, but also to pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country. It is true that laying down more generous conditions concerning the right itself is more favourable than to limit it to the residence card’s validity, but according to the expert’s view the fact that the important reasons are not listed make it arbitrary and less favourable. (f) Retention of the right of residence in the event of death, departure, divorce, annulment or

termination As a preliminary remark, the Slovak legislation has only transposed Articles 12 and 13 with regard to third country family members because, as already mentioned in Article 7(2), the Act 48/2002 does not contain any specific conditions applying to the family members that are Union citizens. Therefore, the Act 48/2002 covers EEA citizens and their family members that are EEA citizens by the same provisions. This is not in conformity with the Directive, notwithstanding the fact that the police authority does not require to fulfil the conditions for the stay of the EEA citizen in case of the EEA citizen’s family member. Therefore, the following paragraphs only analyse the transposition of Article 12 and 13 with regard third country family members.



• Retention of the right of residence by family members in the event of death or departure of the Union citizen (Article 12)

Article 12(2): under this provision the Union citizen's death shall not entail loss of the right of residence of his/her family members and who have been residing in the host Member State as family members for at least one year before the Union citizen's death. This provision also requires that they are able to show that they will not be burden for the system of social and health security by being a worker, having sufficient resources etc. and fulfil other conditions included therein. Transposition of this provision is incomplete. Act 48/2002 has omitted some aspects included in Article 12(2):

- The Act 48/2002 has not transposed the requirement to of a family member being a non-EEA state citizen to prove that they are members of the family, already constituted in the host Member State, of a person satisfying the requirements of the Directive. This provision is missing.

- In addition, the provision requiring having comprehensive sickness insurance has not been

completely transposed. Act 48/2002 does not mention this obligation but refers to the obligation to have health insurance in general so, it is more favourable

Furthermore, the one year residence requirement is transposed correctly. However, the first part of the provision is not transposed correctly, as the Directive (art. 12(2) second subparagraph) requires that the EU citizens and their family members have sufficient resources not to become a burden on the social assistance system, instead, the Slovak legislation requires that such a person should not become a burden for the social security system. Social security system in Slovakia consists of three main fields: social insurance (consisting of health insurance, pension insurance, insurance in job seeking period, injury insurance and guarantee insurance) state social subventions and social assistance (consisting of systems of material need and social need). According to Act N. 599/2003 on assistance in material need, the material need is a state when the income of the citizen and persons evaluated together with the citizen does not reach life minimum, and the citizen and persons evaluated together with the citizen can not ensure or increase the income by their own activity. The foreigner has the same position as the citizen (§ 3 of the Act 599/2003). The person in material need and persons evaluated together with such a person are not considered as persons in material need regardless of the fact that their income does not reach the life minimum, if they can ensure their basic life conditions and help themselves in material need with their property

- Act 48/2002 has also omitted the transposition of the fact that the family members meeting the requirements of Article 12(3) shall retain their right of residence exclusively on a personal basis.

The right of residence of the family members of the EU citizens derives from the right of residence of the EU citizens and not directly from the EU primary legislation. However, according to § 45b (8) (b), the police department cancels the first permission to the privileged foreigner if it determine the grounds for refusal of the application for the first permission. According to §57 (1)(c)(1) the police department expels the foreigner and assigns an entry prohibition of between one and five years, with a minimum of one year if the foreigner entered or resides illegally. According to § 45b (9) the first permission cannot be annulled if this would be disproportionate to the ground for annulment, in particular with regard to the personal and family life of the foreigner. From this wording it results that in such cases the evaluation is done on a case by case basis.



Based on the above, the transposition of this provision of the Directive is not complete. Article 12(3) - under this provision the Union citizen's departure from the host Member State or his death shall not entail loss of the right of residence of his enumerated family members, with emphasis to children are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies. It was transposed effectively by .§45b(6)(c) of the Act 48/2002.

• Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership (Article 13)

Article 13- Divorce, annulment of marriage or termination of the registered partnership shall not affect the right of residence of the family members of the respective Union citizens, who are nationals of a Member State, subject to the fact that they meet the conditions of not becoming the burden for the social and health security system, and subject to meeting the conditions included in this provision regarding especially the length of the marriage. Article 13(1) is not transposed as the Slovak legislation does not include any specific conditions applying to the family members who are the Union citizens. Therefore the Act covers the EEA citizens and their family members being also the EEA citizens by the same provisions. Since Article 7(1)(d) is transposed incorrectly, Union citizens who are family members of a Union citizen will have to fulfil the conditions of Article 7(1) themselves. Article 13(2)(a) requires the marriage to last at least three years before initiation of the divorce procedure, including one year in the host MS The transposition of this provision is incorrect. The Act 48/2002 does not expressly state that the duration of the marriage shall be at least three year before initiation of the divorce procedure, but states only the required duration of three years without further specifications. As the marriage before the beginning of the divorce or annulment proceedings may last a shorter period, the transposition is not equivalent therefore there is not complete conformity. It creates legal uncertainty and a clear provision would be more effective. Article 13(2)(b). under this provision the spouse or partner not being the EEA national who has custody over the citizen's child shall have the right to reside in the Member State even after the termination of marriage or partnership. This provision has also been transposed incorrectly. Slovak family law, Act 36/2005 Coll. on Family, recognises only the official authority decision on custody, mutual agreements are in fact possible but even those have to be approved by the competent court otherwise they are not enforceable. Under this Act, the courts are the competent bodies that issue the decisions on the divorce of a marriage. § 24 of this Act declares that that the decision on divorce shall include especially the ruling who will have the custody over the minor and who will be responsible for its assets. The court shall also decide on the financial contributions of the other parent. Such official court decisions can however be substituted by the agreement of the parents but as indicated above such agreements has to be approved by the competent court. However, according to the interpretation of the Directive, the legislation should not be restricted by the requirement that the agreement has to be incorporated into a court order. It applies in case of all decisions governing custody. This requirement of Act 48/2002 is in comparison to the provisions of the Directive incorrect, the transposition cannot be deemed as compliant.



The Slovak law restricts the right by providing that the child must be of the marriage between the EU citizen and third country family member concerned (the child may also be from the first marriage, etc.). Article 13(2)(c) under this provision the termination of marriage or partnership shall not affect the right to reside in the host Member State in case of particularly difficult situations such as domestic violence. This provision has not been transposed completely. The Act 48/2002 unlike the Directive does not specify any difficult circumstances, occurrence of which shall not entail in loss of the right to reside. Slovak law thus, on one hand, gives enough space for individual assessment of each case but, on the other hand, does not transpose the provision completely. This may lead to discretion and arbitration in assessment. Article 13(2)(d) if by agreement between the spouses or partners or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required guarantees the right to reside in the host Member State even in case of termination of marriage or partnership. Incorrectly and incompletely transposed provision. As was already pointed out, the Act recognises only the official authority decision on custody, not the mutual agreement, as the reason for retention of the first residence permission; therefore also in case of right of access to a dependant only an official decision is emphasised. However, the Directive states: “and for as long as is required” and the Slovak law states “for the time period determined by the authority”. In Slovakia the agreement of the spouses on access rights may be approved by court, it is therefore an integral part of the decision on divorce, but not determined by the court. Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4). As in the case of Article 12, the provision on members of the family already constituted in the host Member State is missing. The sickness insurance is specifically mentioned (“have comprehensive sickness insurance”), however Slovak law does not contain the expression “comprehensive”, but it refers to the health insurance in general.

2.3.3 Retention of the right of residence (Article 14) and Article 15(2) Article 14 provides for the circumstances in which the person may lose the right of residence granted by Articles 6, 7, 12 and 13 of the Directive. (a) Residence for less than 3 months (Article 14(1) According to Article 14(1), the right of residence for up to three months is retained as long as the person does not become an unreasonable burden. The provision was not transposed directly. However, it is assured given the structure of the Slovak regime. There are no explicit provisions regarding the stay up to three months, but on the other hand, there are also no specific requirements other than the obligation to notify the stay, as described in connection to the Article 5(5) of the Directive.



As already mentioned, the Act divides categories of stay into the following categories: stay up to three months and stay for more than three months. In case of the up to three months stay, the only obligation of the citizen or the family member is to notify the presence in Slovakia. The Act 48/2002 does not include any other conditions or obligations. As the Act does not include any conditions or obligations for the up to three month stay, pursuant to the provision of Article 2 of the Constitution it might be said, that in case of the stay up to three months there are no such conditions or obligations. (b) Residence for more than 3 months (Article 14(2) Under Article 14(2), Union citizens and their family members retain the right of residence for more than 3 months as long as they meet the conditions laid down in Article 7, 12 and 13. This provision was not explicitly transposed, but there is no provision indicating the contrary. There is no fix indication on the amount of the financial expenditures securing that the person does not become a burden to the social and security system. However, the obligation to prove that fact does not concern the EEA citizen, but only the family members of the EEA citizens who are not EU nationals. Family members of workers and self-employed persons (EEA nationals) who themselves are not EEA nationals, are obliged to prove the financial covering of the stay. It should be interpreted so that the §57(9) of the Act is applicable only to the residence more that three months, as the conditions according to the §45a (1) or § 45b (1) letter b) regards only the „first permission“ so it should be applicable only to the residence of more than 3 months, up to 5 years. According to the §57(10) of the Act 48/2002, the police authority may expel an European Economic Area citizen without stating any time period for the ban of entry, if the citizen does not meet the conditions of §45a sec.1 d) and the privileged citizen that does not meet the conditions of §45b sec. 1 b). The previous does not apply in case of further permission. As noted above, for the first permission of the EEA citizen and the retention of right of residence of the EEA citizen the police authority always consider the conditions for the stay as fulfilled. If a justified presumption that the EEA citizen does not fulfil the conditions for the first permission or for the retention of right of residence based on the first permission exists, the police authority may verify their fulfilment (§54 (4) of the Act 48/2002). This situation may occur in case that the EEA citizen evidently lives in a material scarcity (for example as a homeless). In such cases the police authority may expel the EEA citizen administratively without determination of the period of the prohibition of stay (§57 (10) of the Act 48/2002). According to the Internal Regulation it means that the EEA citizen may return to the territory of Slovakia whenever he/she wants, however, in case of the application of his first permission the police authority requires that the conditions for the first permission are fulfilled. Subparagraph 2 of Article 14(2) contains a general provision on verification regarding the obligation to prove the financial coverage of the stay. As stated in the law, the verification is done in case of a reasonable doubt, meaning that these verifications are not systematic. Under § 49 (4) of Act 48/2002 the obligation to prove financial resources during a verification of stay does not apply to the EEA citizens, but applies to their third country family members. A reference that the respective verifications shall not be based on a systematic approach is missing. Therefore, the transposition of the second subparagraph was considered incomplete.



(c) Protection against expulsion (Article 14(3)-(4)

• General protection (Article 14(3)) Article 14(3) provides that an expulsion measure shall not be the automatic consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system of the host Member State. Act 48/2002 has not been transposed correctly. One of the conditions is not being a burden to the social security system. If the foreigner applies for assistance it could be said that the person has become a burden unless there is the special protection granted by this provision of the Directive. Act 48/2002 does not contain any explicit provision that prevents the police authority from expelling the foreigner from Slovakia, and that an expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State. The Act 48/2002 only gives the possibility, not the obligation to expatriate a Union citizen or the family member. Family members of workers and self-employed persons (EEA nationals) who themselves are not EEA nationals, are obliged to prove the financial covering of the stay. Expatriation in general is not possible with regard to persons that have already obtained the further approval permission, as it is stated in the last part of the sentence - § 57 (10) of the Act. However, the explicit prohibition to automatically expel a Union citizen's or his or her family member's after their recourse to the social assistance system is missing.

• Workers and self-employed persons, and job seekers (Article 14(4) Article 14(4) provides that an expulsion order may not be adopted against Union citizens or their family members if the Union citizens are workers or self-employed persons or if the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled so long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. This is a case of incomplete transposition, as an explicit prohibition to expel in such a case the EEA citizen or his family members is missing. There is also the problem of non transposition of the retention of the status of worker. According to the §57(10) the police authority may expel an EEA citizen without stating any time period for the ban of entry, if the citizen does not meet the conditions of §45a sec.1 d) and the privileged citizen that does not meet the conditions of §45b sec. 1 b). This does not apply in the case of further permission. § 45a (1) states the condition that the EEA citizen must have finacial resources to cover the stay and health insurance for the territory of the Slovak Republic. § 45b (1)(b) states that the police authority issues the first stay permission to a privileged foreigner if he/she is not a burden for the system of health insurance and social security insurance in the Slovak Republic. For the purposes of the permission of stay is enought that the privileged foreigner declares in writing that he/she will not become such a burden. The same is valid also for the case of retention of the right of stay pursuant to the § 45a(5) in respect to the EEA citizens and § 45b (6) in respect to the family members of the EEA citizens, who are not Member State nationals. The § 45a (5) states that the right to stay is retained, if: a) the termination of the employment relation was caused due to an occupational disease or accident at work, or if the self-employed person due to sickness cannot temporarily work.



b) the worker is involuntary unemployed and 1. has been employed for more that one year and has registered as a jobseeker, 2.the worker has completed a fixed term employment contract concluded for a time period shorter than one year or the employment contract was terminated during the first twelve months and has registered as a jobseeker, or 3.the person has embarked on vocational training, c) the person is voluntarily unemployed and has embarked on vocational training that relates to the previous employment. However, according to the §49(e) the foreigner is obliged to prove during the control of the stay the financial covering of the stay. Family members of workers and self-employed persons (EEA nationals) who themselves are not EEA nationals, are obliged to prove the financial covering of the stay. In the § 36 of the Act 5/2004 on Employment Services the reasons of deletion of the register of the involuntary unemployed persons are listed. A registered jobseeker as involuntary unemployed person receives according to the § 105 (1) of the Social Insurance Act a contribution for up to six months period of time. (d) Article 15.2 – expiry of document not a ground for expulsion Article 15(2) provides that the expiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion. No such explicit provision, but expulsion is possible only in specific enumerated cases, namely in the § 57 (8) and (9) regarding the case that the EEA citizen or the privileged foreigner presents a risk to the public security, public order or public health, and (10) regarding the case of being a burden to the social and health security system. The police authority may expel an EEA citizen or a privileged foreigner, who have the further stay permission only due to serious threats regarding the public security or public policy (under §57(9) of the Act 48/2002) and due to public security, public policy or public health reasons, except if the disease occurred after three months after the EEA citizen or the privileged citizen arrival (under §57(8) of the Act 48/2002). This means that if the Act does not enable the police authority to expel the EEA citizen or his family member for such a reason, it can be deduced that the police authority has no power to do so. Article 15(3) under this provision the host Member State may not impose a ban on entry in the context of an expulsion decisions restricting free movement on grounds other than public policy, public security or public health was transposed effectively by §57(10).

2.4 Right of permanent residence

2.4.1. General rule for Union citizens and their family members (Article 16: Eligibility) Article 16 of the Directive gives the Union citizens and their family members’ right of permanent residence after a continuous residence of five years in the host member state. It states also various conditions if the stay shall be deemed continuous. As a general remark, the transposition of this provision again includes a discrepancy in designation of the legal instrument, which is called further stay permission. The word “permission” does not correspond with wording of the Directive ("the right of permanent residence"), but the aim



corresponds with the meaning or the Directive. Regarding this incorrectly used term (please see also Article 7(3)(a).) Article 16(1) This provision includes a general rule that after five years of legal continuous residence the Union citizens have the right of permanent residence. This Article is fully transposed by §45c(1)(a) and §57(10) of Act 48/2002 - the continuous period of 5 years of legal residence in the host Member State as a precondition of the right of permanent residence was transposed. Reference that the condition under Chapter III shall not apply is missing, since the Act does not contain provision implemented this sentence verbatim. However, transposition can be deduced from other provision of Act especially § 57. The term permanent residence (“trvalý pobyt”) is used in the Act 48/2002 in a different manner. The permanent residence is granted to the foreigner who has moved to Slovakia because of joining the family (first permission for the permanent residence) and after 5 years of stay such a foreigner may obtain the further permission for the permanent stay. A second case are the foreigners who move to Slovakia because of work or study, etc. Their first stay is not the first permission for the permanent residence but the temporary stay, and after 5 years they may receive the permanent residence. Special provisions concern the EEA citizens and privileged foreigners, who obtain the first and the further permission for the permanent residence. In this way they are considered as equal to Slovak citizens as they have the permanent residence immediately, as soon as they move to Slovakia with the intention to stay for more than 3 months. They enjoy the rights that are connected with the permanent residence in Slovakia, such as electoral rights in municipal elections, etc. The residence of the Slovak citizens is permanent or temporary. Article 16.2 This article provides the right of permanent residence also to the family members that have legally resided in the host member state for a continuous period of more than five years. Act 48/2002, in its §45d(1), does not explicitly require „legal” residence of family members of the Union citizen as the explicit indication that the privileged foreigner has legally resided with the Union citizen is missing. Therefore, it is more favourable treatment. Article 16.3 This article enumerates temporary absences from the territory of the host member state that shall not affect the continuity of residence. Transposition of this paragraph is not complete – provisions of § 45d (1)(Act 48/2002 do not stipulate any important reasons (such as pregnancy, childbirth, serious illness, study or vocational training) of temporary absences which not affects the uninterrupted stay. Article 16.4 stipulates that the right of permanent residence can be lost only due to an absence of more than two years According to §45c(4) of the Act 48/2002 the right of permanent residence shall be lost in case of absence from the Slovak Republic for the period exceeding two consecutive years, which is in compliance with the Directive. Except from this reason, similarly as in case of the stay under the first permission in §45a(4), Act 48/2002 recognizes also other reasons of expiration of permanent stay (residence) as stated in § 45a sec.4: a) if the person notifies respective authority the termination of this stay, b) if the person was expelled or



c) if the person obtained the citizenship of the Slovak republic. The third reason is the result of the definition of the foreigner contained in the §1 (2) of the Act 48/2002, pursuant to which “a foreigner is everybody who is not a state citizen of the Slovak Republic”. The automatic consequence of the citizenship is the right for residence in the Slovak territory. The philosophy of the Act 48/2002 is that the Slovak citizenship causes that the person with dual citizenship to be considered as a Slovak national and not as a foreigner anymore. However, as the right to free movement and residence in the Slovak territory of the EEA citizens and their family members who are not EEA nationals (privileged foreigners) is more advantageous than the right of the family members (not EEA nationals) of the Slovak nationals, such consequence as contained in the §45a(4)(c) is not in accordance with the Community legislation. The previous two reasons (under a) and b) ) seem to be more restrictive than the Directive, even if the first depend on the activity of the interested person declaring the termination of the stay and the expulsion may be executed only in case of serious threats to public security and public policy. However, according to the interpretation of the Article 21 of the Directive, only expulsions that have taken place may break the continuity of residence. Such an explicit statement is in the Act 48/2002 missing. 2.4.2 Acquisition of the right of permanent residence for workers/self employed

person and their family members (Article 17)

This Article regulates the exemption for persons no longer working in the host Member State and their family members before the expiry of the five years period. Article 17 is mostly transposed in Act 48/2002 in a way of effective or literal transposition. Article 17(1)(a) covers workers and self-employed persons that have reached retirement age and have worked in the host members state at least twelve months and have resided there for at least three years. This provision was transposed by §45c(1)(b) of Act 48/2002. The transposition is as a result more favourable, because the Directive requires that the person has been working in the Member State for at least the preceding 12 months, but Act 48/2002 requires only at least 12 months of working in Slovak Republic. For a worker it is thus satisfactory to work only any 12 month within the period of 3 years. Equally, the Directive requires continuous residence in the host Member state for more than three years whereas the Act 48/2002 introduces a more favourable arrangement, i.e. the EEA citizen has had an uninterrupted stay in the Slovak republic for at least 3 years. Also the expression of the Act 48/2002 “and fulfilled the conditions for entitlement to an old age pension or an early retirement” seem to be more favourable than the wording of the Directive “at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement”, as the Slovak law does not expressly require to stop working when the conditions for old age pension or early retirement are fulfilled. Article 17.2 rules that the conditions as to length of residence and employment shall not apply if the worker's or the self-employed person's spouse or partner is a national of the host Member State or has lost the nationality of that Member State by marriage to that worker or self-employed person. The condition stated in this Article was transposed separately in provisions (§ 45c sec. 1 b), § 45c sec. 1 c) instead of at once for all the cases, but the transposition is effective. Article 17(3) - irrespective of nationality, the family members of a worker or a self-employed person residing with him in the territory of the host Member State shall have the right of permanent residence in that MS, if the worker or self-employed person has acquired himself the right of permanent residence in that MS.



This provision was transposed effectively by §45c (1)(e) and §45d(1) of Act 48/2002. Article 17(4) - under this provision the family members who are residing with the worker or self-employed person in the host Member State and this person dies while still working but before acquiring permanent residence status, the family members shall acquire the right of permanent residence there, subject to fulfilment of certain conditions. This Article was transposed effectively by §45c(1)(f)(1) - (3) and §45d(1) of Act 48/2002.

2.4.3 Acquisition of the right of permanent residence by family members who are not nationals of a Member State and retained their right of residence (Article 18)

Article 18 enables the family members of a Union citizen covered by Article 12(2) and 13(2) satisfying certain conditions to acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State. The provision was transposed effectively by §45d(1) of Act 48/2002. The privileged foreigner obtains further permission from the police authority if his first stay has lasted for at least five years or if the person resides within the Slovak Republic as a family member of an EEA citizen under §45c sec. 1 b) to f) of Act 48/2002, but in this context is necessary notice the fact, that Articles 12 and 13 has not been transposed correctly. Act 48/2002 does not explicitly mention that the previous stay of 5 years shall be legal. It seems to be more favourable in this respect.

2.4.4 Documents certifying permanent residence for Union citizens (Article 19) This Article regulates the documents certifying permanent residence for Union citizens and their issuing. The list of documents is exhaustive. Transposition of the provision in Slovak law is almost effective. An EEA citizen may apply for registration of further permission. It is possible for an EEA citizen to ask for the registration, not his obligation. This is in accordance with the expression of the Directive “upon application”. According to the interpretation of this Article, there is no obligation for Member States to issue the document automatically, and Union citizen must first request the issue of the document certifying permanent residence. In addition to the documents confirming fulfilment of the conditions, also three photographs are required.- The Foreign Police has published on its website a list of documents that shall serve as proofs of fulfilment of the conditions under §45c(2). Those are: 1. statement by the employer regarding the length of the employment relation, 2. proof of executing an entrepreneurial activity, 3. statement by the competent authority that the EEA citizen fulfilled the conditions for old age pension, disability pension or was such pension already granted, 4. proof of marriage, 5. statement by the competent authority that the employment relation expired due to permanent inability to work (e.g. statement by the employer), 6. death certificate and statement by the competent body that he death occurred as a result of work accident or occupational disease. An EEA citizen shall enclose with the application a declaration that he/she has resided in Slovakia during the required time period without interruptions.



These data were not included in the Act 48/2002. They are included in the Internal Regulation, which is not generally legally binding. Act 48/2002 does not specify whether the document on residence is issued on the spot. However, the police authority issues a confirmation of acceptance of the application on the spot. In the Act 48/2002 there is no specific provision regarding the time for issuing the document. As was mentioned in relation to the Article 15(1) if Act 48/2002 does not state otherwise, procedural aspects will be governed by the Act 70/1967 Coll. the Administrative Procedure Act. For the relation between these acts please see Article 3(2)(b). As the Act 48/2002 does not include any fixed time period for issuance of the document certifying permanent residence, the general time periods under the Act 50/1976 Coll. the Administrative Procedure Act would apply. Under this provision, the administrative body, in this case the police, shall in simple cases decide without undue delay. In other cases, if specific legislation does not state otherwise, the administrative body shall decide within 30 days after initiation of the procedure. In more complex or complicated cases this time period can be prolonged to 60 days (30 days + 30 days) If it is not possible to reach a decision even within 60 days, the appellate body, as the supreme one, is entitled to prolong the period to 90 days (60 days + 30 days). According to the Act 48/2002 the document on further permission is issued for 10 years, but the privileged foreigner is obliged to ask for the new document at least 60 days before the expiration of the validity of the document on residence. Also the ID of the Slovak nationals are not issued for unlimited period of time, but for 10 years to be renewed. However, as the validity of the document issued to the EU citizens should be unlimited, the transposition is incorrect.

2.4.5 Permanent residence card for family members who are not nationals of a Member State (Article 20)

Article 20.1 regulates the issuing of residence cards to third country family members. The card shall be issued within six months after submitting the application and shall be renewable after ten years. This provision was transposed effectively by §46(6), §45d(3) and 46(5) of the Act 48/2002. The validity time periods of the document on stay are the same in case of the family members: five years in case of the first stay permission and ten years in case of the further permission.17 § 46 sec.6 of Act 48/2002, transposing this provision, does not contain any strict periods for the police authority for issuing a permanent residence card. The periods of validity of the permanent residence card of the privileged foreigner are the same as in case of the EEA citizens. The police authority shall issue a document certifying the residence for the maximum time period of five years. In case of presenting a further stay permission, the residence certifying document shall be issued for ten years. §46 sec. 5. of Act 48/2002 does not contain any provision relating to automatic renewal of the permanent residence cards every 10 years. Article 20.2 This Article states that the application for a permanent residence card shall be submitted before the previous residence card expires. Failure to comply with this requirement may render the person concerned liable to proportionate and non-discriminatory sanctions. This provision was transposed effectively by §45d(2) of the Act 48/2002.

17 Regarding explanation of the incorrectly used term permission, please see also the part on Article 7 (3)(a).



The privileged foreigner may apply for further permission not later 60 days before the first permission expiry. According to the Directive the application for a permanent residence card shall be submitted before the residence card expires. The Directive does not set any exact time period for applying for a permanent residence card, according to the wording of the Directive the application can be submitted one day before the card expiry, so wording of the act is more restrictive. The Act also does not constitute any sanctions in case of the failure to register. Submitting the application for further permission is also in case of family members voluntary. As sanctions we could consider not issuing further permission and expiry of the first permission. Article 20.3 guarantees the interruption of residence not exceeding two consecutive years, which shall not affect the validity of the permanent residence card. Further permission of the privileged foreigner shall cease due to the reason stated in the § 45c sec. 4 of the Act. According to the § 45c sec. 4, stay subject to further permission of an EEA citizen’s stay shall terminate based on the condition set therein or if the absence from the territory of the Slovak Republic is at least two consecutive years. The transposition is effective, since absence from the territory of the Slovak Republic not exceeding two consecutive years does not affect the validity of further permission of the privileged foreigner. This provision was thus transposed effectively by §45d(5) and § 45c(4) of the Act 48/2002.

2.4.6 Continuity of residence (Article 21)

This provision states that the continuity of residence may be attested by any means of proof that are in use in the host Member State. Continuity of residence is broken by any expulsion decision duly enforced against the person concerned. The Act 48/2002 does not stipulate any specific proof for attesting the continuity of residence. However according to the 71/1967 the administrative procedure code as a proof can be used means by which the real state of a case can be verified and clarified and which are in accordance with the legal rules can be used. According to the § 45c (4) of Act 48/2002 stay subject to further permission of an EEA citizen shall terminate based on the condition of §45a sec. 4 or if the absence from the territory of the Slovak Republic for at least two consecutive years. According to the §45a sec. 4 stay of the EEA citizen pursuant to the first permission shall cease, if he was inter alia administratively expelled. This provision was transposed effectively by §45c(4) and § 45d(5) of the Act 48/2002 and §34(1) of the Act 71/1967.

2.5 Common provisions (Articles 22-26)

2.5.1 Territorial scope (Article 22)

The right of stay and residence covers the entire territory of the Slovak Republic. The Slovak Republic does not impose any territorial restrictions on the right of residence and the right of permanent residence.

2.5.2 Right to take up employment by family members (Article 23)

Article 23 states that the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self- The Act 5/2004 covers equal treatment in the field of labour relations and guarantees equal treatment for all EEA citizens and Slovak nationals regarding the access to work and employment in form of



seeking a proper employment and training and preparation for the work market necessary for the application in the labour market. § 2 sec. 2 of Act 5/2004 declares equal legal position of an EU citizen, EEA citizen and their family members. On the other hand, Act 311/2001 the Labour Code focuses more on the relationship between the employer and employee.

2.5.3 Equal treatment (Article 24)

Article 24(1) shall guarantee the Union citizens and their family members equal treatment with the nationals of the host MS. EU citizens residing in a Member State shall have equal rights as the nationals of the particular MS. This benefit shall be extended to their family members. This provision was transposed incompletely. As indicated above, Slovak Republic has in 2004 introduced specific legislation targeted on equal treatment in certain sectors - Act 365/2004 on equal treatment in certain aspects and on protection against discrimination. Act 48/2002 does not directly include any provisions covering equal treatment. One part of the equal treatment legislation is Act 365/2004 and Act 311/2001 the Labour Code, Act 455/1991 the Trade Licences Act, Act 5/2004 on Employment Services, Act 131/2002 on Universities, etc. also include provisions covering equal treatment Other regulations of equal treatment are involved in the Act 365/2004 Coll. on equal treatment in certain aspects and protection against discrimination. In 2004, the Slovak Republic introduced specific legislation targeted on equal treatment in certain sectors. The Act 365/2004 on equal treatment in certain aspects and on protection against discrimination entered into force on 1 July 2004. Its scope covers equal treatment principles and legal protection aspects. This act covers equal treatment in the fields of social security, health security, provision of goods and services, education and labour relations ( “In compliance with the equal treatment principle is the discrimination in the field of social security, health care and provision of goods, services and education, due to their sex, race, nationality or ethnic origin, prohibited.”) Act 365/2004 does not cover all aspects of social and economic life. It covers only aspects enumerated therein. The § 4 (1) of this act numerates persons that are covered by this act. Those are: a) different treatment due to the conditions of entry and residence of foreigners in the Slovak Republic, including treatment under separate legislation 2), except from the EU citizens, EEA citizens, persons without any citizenship and their family members […]Note 2) (treatment under separate legislation) refers to the Act 48/2002. It means that Act 365/2004 applies to the Slovak citizens as well as to the EEA citizens and their family members. The advantage on one hand is that Slovak law has a separate specific legislation governing equal treatment, but on the other hand the Act 365/2004 does not cover all aspects of social life, only social security, health care, education, access to goods and services. This list, however detailed, cannot be deemed as exhaustive. Act 365/2004 is a general legal platform for equal treatment. Act 5/2004 covers only the aspects of equal treatment on the labour market A general principle in Act 48/2002 would have been better to help courts in the application of the law in all situations. For this reason, the transposition is considered incomplete. Article 24.2 The host Member State shall under this provision not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period. Act 48/2002 does not contain any specific provisions in force, which would transpose Article 24.2. But we can consider such a legal status (absence of provision limiting the entitlement to social



assistance during stated time period) as more favourable, however in accordance with the Directive, as it does not impose any duty to do so. Thus this provision was transposed effectively.

2.5.4 General provisions concerning residence documents (Article 25)

Under Article 25(1) of the Directive possession of a residence card may not be made precondition for exercise of rights. This provision was transposed incorrectly. The Slovak law does not explicitly state that such document may under no circumstances be made a precondition for the existence of a right or the completion of an administrative formality. The possession of the residence document only facilitates the entry of the EEA family members, but it is not a precondition of a right to enter. Under Article 25(2) of the Directive all documents mentioned in Article 25(1) (registration certificate, document certifying permanent residence, certificate attesting submission of an application for a family member residence card, residence card, permanent residence card) shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents. According to the Act 145/1995 Coll. on Administrative Fees, issuing first permission, renewal of the temporary stay of a foreigner and the permission for permanent residence are free of charges, as exemption for the persons according to the §45a – 45d of the Act 48/2002 regards the EEA citizens and their family members irrespective of their nationality. This provision was transposed effectively.

2.5.5 Checks (Article 26)

Article 26 enables the Member State to carry out checks on compliance with any requirement deriving from their national legislation for non-nationals always to carry their registration certificate or residence card, provided that the same requirement applies to their own nationals as regards their identity card. In the event of failure to comply with this requirement, Member State may impose the same sanctions as those imposed on their own nationals for failure to carry their identity card. Act 48/2002 transposed this provision incorrectly, the transposition is stricter. The foreigner may submit either travel document or document of stay or ID issued by the ministry of foreign affairs. According Act 48/2002 a foreigner is obliged to demonstrate the identity and a right to stay on request of a police officer by submitting the travel document, document on stay or identification card. In case of breaching this obligation, the fine can amount to 50 000 SKK.[1660 EUR] The citizens of the Slovak Republic have an obligation to demonstrate the identity pursuant to the Act 171/1993 Coll. on Police. According this act “the police officer is entitled to ask a person to demonstrate his/her identity by identity card 9), if it is necessary for carrying out of duties within the scope of this Act.”. Refusal to do so and the impossibility to demonstrate the identity may result in detention on a police office. Before such detention can be executed for the purpose to find out persons identity, more requirements enumerated in this Act have to be met. Note 9) refers to the Act 162/1993 Coll. on Identity cards, Act 381/1997 Coll. on Travel Documents (replaced by Act 647/2007) and Act 48/2002. Thus, the transposing legislation imposes the same requirement as applies to Slovak nationals as regards their identity card, on foreigners. However, the foreigner may be punished in case of a contravention by a fine up to 50 000 SKK and such a fine is not applied to the Slovak citizen. Thus this regulation is in contradiction with the requirement of the Directive to impose for foreigners same sanctions as those imposed on own nationals for failure to present their identity card. A Slovak citizen does not pay any fine, but can be arrested (not imprisoned) in the police department. Instead, the foreigner may be punished by a fine.



2.6 Restrictions on the right of entry and residence on grounds of public policy, public security and public health

2.6.1 General principles (Article 27)

According to Act 48/2002, an EEA citizen or his/her family member's right of entry may be denied not only in case if there is a serious threat regarding the public security, public policy or if it is necessary to protect public health, but also in case when the person is a persona non grata, or if the person cannot present valid travel document or visa, if required. Persona non-grata (a person that has been expelled before) is not included among the reasons for which a person can be expelled. According to the 1999 Communication, an evaluation of the personal circumstances is important, so a general fact that the person is a persona non grata should not be a reason to deny the entry. Also this reason (persona non grata) is not in compliance with Article 27 (2) of the Directive as measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned, previous criminal convictions shall not in themselves constitute grounds for taking such measures. Previous expulsion is under §6(1) of the Act 48/2002 among the reasons to deny entry. The right of entry cannot be denied as such for the sole reason of not having a valid travel document. Regulation of Act 48/2002 is in this case stricter and thus non compliant. As the concepts of public policy and public security are in Slovak legal order new, a relevant set of decisions has not yet been established. Thus it is difficult to expect the standpoints of the courts. An interesting judgement regarding the public order is the Judgement of the Supreme Court of the Slovak Republic from 28 October 1998, file number 6 Sž 53/98, published in the volume n. 65/1999, book 3, page 59) According to this decision the mere fact that the foreigner has committed a contravention may not be a reason not to permit the entry of the foreigner in the territory of the Slovak Republic. Article 27(1) of the Directive also stipulate that grounds for restricting the freedom of movement and residence as a public policy, public security or public health shall not be invoked to serve economic end. The Slovak Act does not contain this statement. Article 27(1) of the Directive – the possibility to refuse entry for a failure to present a valid travel document or visa is contrary to Article 5(4) of the Directive and the MRAX judgment. According to the §6 (2) of the Act 48/2002 the policeman must give the EEA citizen or his family member the opportunity to obtain the travel document or to demonstrate in another reliable way that he/she has a right of free movement and residence. However, this provision is not reflected in the procedure included the Internal Regulation (e.g. see Note to the Art. 176 of the Internal Regulation). The Act 48/2002 does neither contain any transposing provision for Article 27 (2) concerning the principle of proportionality and personal ground of measures. However, according to the Act 71/1967 the Administrative Procedure Act that in § 3 (4) stipulates that “a decision of the administrative authority must result from a reliably verified status quo. The administrative authorities shall regard that the decisions on factually identical or similar cases will not create unreasonable differences.”. Pursuant to its § 34 (5) “the administrative authority evaluates the pieces of evidence according to its consideration, each piece of evidence individually and all pieces of evidence in their mutual connection.”. Pursuant to the Act 301/2005 on Penal Procedure § 2 (12) “The criminal authorities and the court evaluate the legally obtained pieces of evidence according to their interior conviction based on careful consideration of all the circumstances of the case individually, independent of whether they were brought by the court, criminal authorities or some of the parties.”.



According act 48/2002, the police authority may ask respective authorities of another EEA member state for information about previous police records of the EEA citizen or privileged foreigner. The three months time period for asking such information about previous police records from entry to Slovak Republic or from registering the stay applies only to the EEA citizens. Act 48/2002 does not include any exact time periods for obtaining such information about privileged foreigners. Also the requirement that such requires not be made as a matter or routine is not transposed. There is no specific provision regarding the Slovak person who was expelled from another Member State as stated in the Article 27(4) of the Directive. However the right may be deduced from the § 7(2) of the Act 48/2002. According to this Act, the right to entry may not be denied to a foreigner who has permitted the stay in the Slovak Republic. Based on the above, Article 27 was not transposed completely and accurately.

2.6.2 Protection against expulsion (Article 28)

Article 28.1 According to Article 28(1) of the Directive, an expulsion decision shall be decided on grounds of public policy or public security taking into account personal situation of the person in question, especially the length of stay, cultural integrity etc. The provision has not been fully transposed by Slovak law because it does not transpose certain important elements such as the fact that an expulsion decision shall be decided on grounds of public policy or public security. In addition, the Slovak provision only relates to the right of permanent residence whereas the Directive also covers persons residing in the country before they acquire the right of permanent residence. Supporting provisions are found in Act 71/1976 on Administrative Procedure, which states general requirements for administrative decisions. E.g.: § 3 (4) “A decision of the administrative authority must result from a reliably verified status quo. The administrative authorities shall regard that the decisions on factually identical or similar cases will not create unreasonable differences.”. Pursuant to its § 34 (5) “The administrative authority evaluates the pieces of evidence according to its consideration, each piece of evidence individually and all pieces of evidence in their mutual connection.” However, this provision is an essential right of Union citizens and needs to be transposed. Articles 28(2) and 28(3)(a) were transposed effectively by §57(9) and §57(11)a of the Act 48/2002. However, a reference to imperative grounds of public security as in the Directive is needed and thus not in compliance. Current wording of Act 48/2002 transposing the Article 28(3)(a) is much softer than the Directive. The ban on expulsion should cover both the person and the minor included in Article 28(3)(b), but Act 48/2002 relates the ban only to the residing person. Regarding the Article 28(3)(b) an expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member or the person is a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. The transposition is not correct. Wording of the Directive relates the ban on expulsion except from the public security threat reasons, to both the person residing in a Member State as well as the minor. However, regarding the above, the Act 48/2002 relates the public threat reasons only to the residing person, not the minor. Note 21a) refers to the United Nations Convention on the Rights of the Child (notification in the Collection of Laws n. 104/1991). Slovakia is a party to the UNCRC.



The police authority asks the Slovak Information Service “SIS” (secret police) for the information on the foreigner and if, according to their information the foreigner presents a security risk, the police authority shall propose that the police director refuse the application for the first permission for stay of the foreigner. The police authority also may ask the authorities of another state of the EEA for the information on previous police records about the foreigner in case of serious suspicion of a threat to state security or public order (such a request may be done within 3 months from the entry of the foreigner in Slovakia). The grounds of the justified suspect that the privileged foreigner would threaten the security of the state or public order will result especially from the knowledge of other departments of the Police, e.g. Office of the fight against the organised crime, therefore the suspicion should be documented in writing in such a way that the documents can be used in the court procedure.

2.6.3 Public health (Article 29)

Article 29.1- under this provision the only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the WHO and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. This provision was not transposed completely. The only diseases justifying restriction of the freedom are those indicated by WHO and Member States. Under § 80 of Act 48/2002 the Ministry of Health shall issue a list of such diseases. As confirmed with the competent authority, such legal instrument has not been issued yet. When issued, this list should match the WHO instruments. Anyway, provisions stating that these are the only diseases that can justify restrictions in freedom of movement are missing. Article 29.2 was transposed effectively by §57(8) of the Act 48/2002. It states that diseases occurring after a three-month period from the date of arrival shall not constitute grounds for expulsion from the territory. Article 29.3 - this provision presumes that if there are serious indications of necessity, Member State may, within three months of the date of arrival; require persons entitled to the right of residence to undergo a medical examination to certify that they are not suffering from any of the sicknesses mentioned in this Article. Such medical examinations may not be required as a matter of routine. This provision was not transposed at all. However, this provision of the Directive states that "the Member State may within three months from the date of arrival..." thus it gives only a possibility to the Member State to introduce such a provision, not the obligation, so it seem to be in accordance if such a provision is not transposed in Slovakia. According to the Act 576/2004 §6(8)(c) the informed consent is not required in case of medical care in medical institute when the person carries a contagious disease. Expulsion as a penalty or legal consequence (Article 33) Transposition of this provision is incomplete. Act 48/2002 does not contain any specific transposing provision concerning the Article 33 of the Directive. Transposition can be indirectly deduced from the wording of the Penal Code (Act 300/2005 Coll.) which recognises the penalty of expulsion in its § 65. According this provision in case that the security of persons or property or other public interest requires so, the court may impose a penalty of expulsion from the territory of the Slovak Republic to a perpetrator who is not a citizen of the Slovak Republic nor a citizen of other Member State nor an EEA citizen, nor a person to which an asylum decision was granted or a supplementary protection was provided. It means that such penalty can be imposed to the third country family members when the security of the persons or property or other



public interest requires so. The penalty does not apply to the EEA citizens and their family members who are also EEA citizens at all. Regarding the EEA family members who are not themselves EEA citizens, the regulation ensuring that the scope for such penalty should be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin, is missing. Regarding section 2 of this Article, expulsion is possible only in specific enumerated cases, namely in the § 57 (8) and (9) regarding the case that the EEA citizen or the privileged foreigner presents a risk to the public security, public order or public health the administrative expulsion is a decision of the police authority on the end of the stay of the foreigner determining the time limit for leaving the country and time of the prohibition to entry (§ 56).

2.7 Procedural safeguards against decisions restricting free movement (Article 15, and Articles 30-31)

2.7.1 Notifications of the decisions (Article 30)

Article 15.1, article 30 and article 31 – procedural safeguards These three articles envisage certain procedural protections that apply when decisions are taken to restrict the free movement of EU citizens and their family members. Article 15 makes reference to the procedural guarantees actually contained in articles 30 and 31. Decisions on expulsion or denial of entry or residence are considered to be administrative decisions under Slovak law. In general, all administrative decisions have to result from formal procedure and have to include some specific formal and material essentials such as the reasoning, appellate possibilities etc. The administrative expulsion is a decision of the police authority on the end of the stay of the foreigner determining the time limit for leaving the country and time of the prohibition to entry (§ 56). According to the §78 of the Act 48/2002 the Administrative Procedure Act applies for the decisions if not state otherwise in this Act 48/2002. It means in concrete that an administrative decision shall contain the exact decision wording, grounds on which the decision was taken and information on the possibility of appeal. Grounds on which the decision was taken are not necessary, if the decision is in favour of all parties. Article 30 stipulates that persons concerned shall be notified in writing of any decision restricting free movement in such a way that they are able to comprehend its content and the implications for them. First of all, any party to the proceedings shall be provided with an interpreter if he does not understand the language the proceedings are led in. This right is included in Article 47(4) of the Constitution. If the Act 48/2002 does not state otherwise, all decisions taken pursuant to its provisions are governed by the Act 71/1967, the Administrative Procedure Act. The Act 71/1967 serves as the basic legal platform for administrative decisions and procedural rules applicable in administrative proceedings. Its provisions apply in most fields including the foreigners stay. The provisions of this Act can be omitted only if specific regulations include different ruling, or if the Act explicitly states that the provisions of this Act shall not apply. The provisions of Act 71/1967 apply in most fields. This Act is the general code of conduct for those administrative bodies that decide on rights, legally protected interests and obligations of natural and



legal entities. It provisions can be omitted only if specific acts, including the Act 48/2002, explicitly state that its provisions shall not be applied. Act 71/1967 also enumerates bodies, or to be more specific, groups of bodies, that are obliged to act pursuant to its provisions. Those are inter alia state bodies. This group includes also the police authority that is the key body active in the field covered by the Directive and Act 48/2002. Any state body or administrative body in general can, under Article 2 of the Constitution of the Slovak Republic, act only under the Constitution, within its scope and in the way described by other acts. Act 71/1967 includes formal and material essentials of the decisions taken as well as detailed rules of the procedure. The administrative body is always to some extent examining the circumstances, but an explicit provision is missing. An argument can be derived from the basic principles of administrative bodies’ conduct that are enumerated in Act 71/1967. These are deemed as the most fundamental principles serving also as general rules for interpretation of its contents and aim. One of these principles under §3(2) of Act 71/1967 is that administrative bodies in general are obliged to act in close cooperation with the parties to the proceedings and other persons that may be influenced and always offer them a chance to defend their rights and interests. This includes especially the right to submit proposals and to express their opinion in relation to the decisive grounds. Administrative bodies are also obliged to provide the parties with assistance in order not to suffer any harm due to lack of knowledge of legislation. Another argument showing that administrative bodies are to some extent obliged to examine personal circumstances can be found in §3 (3) of Act 71/1967, which states that administrative bodies are obliged to examine each case relating to the proceedings responsibly and with due care and to use to most appropriate means of handling the case. All administrative decisions have to, under §3(4) of Act 71/1967 be based on reliably gathered finding of fact. Article 30.1 This provision was transposed effectively. §47 sec. 3 of Act 71/1967 obliges any competent authority to motivate all of its decisions. In the justification of the decision the administrative authority is obliged to state, which facts were a basis of the decision, which were the consideration that he followed evaluating the evidences, how he used an administrative discretion using the legal regulations pursuant to which he decided and how he treated the proposals and objections of the parties to the proceedings. The decision shall be clear and comprehensive, including only the wording of the decision, relation to the parties to the proceedings and the legal provision pursuant to which it was decided. All other fact shall be included in the justification. Administrative bodies issuing decisions are obliged to issue decisions in such a way, that the parties to the proceeding understand the procedure as well as the decision and its implications. The justification is not necessary when the decision satisfies all parties, this is not foreseen by the Directive, but it can be presumed that if the parties were satisfied in whole extent, they are able to comprehend its content and the implications for them. Justification is not necessary when the decision is in favour of all parties to the proceeding. In case of expulsion it would probably not be the case, because the EEA citizen / family member the expulsion would not be the result he was seeking. Any party to the procedure shall be provided with an interpreter if he does not understand the language the procedure is led in. This right is included in Part 7 - the right to protection by the court and other legal protection of the Constitution



Article 30.2 - the persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security. This provision was transposed effectively. §47 sec. 1 is again a provision of the Act 71/1967 the Administrative Procedure Act that gives the general basic framework for administrative decisions of any type. For more detailed explanation please see Article 3 (2) (b). If both parties to the proceeding were satisfied, there is no need to include in the decision detailed description of the grounds. However, in this case it will probably not be applicable and thus the grounds on which the decision was taken will form an inevitable part of the decision. However, the Administrative Act does not enumerate that public policy, public security or public health grounds. Article 30.3 - the persons concerned shall be informed about the possibilities of a redress procedure and shall be given a time period to leave the country not shorter than a month. The provision was transposed effectively but there is a minor gap in transposition regarding the time limit for leaving the country. Pursuant to the § 56 of the Act 48/2002 administrative expulsion is a decision of the police department on a termination of the stay of the foreigner contains the determination of time to leave the territory and the duration of the prohibition to entry, unless otherwise provided. However, according to the Directive, it shall be not less than one month from the date of notification. Instead, according the Act 48/2002 such a time limit may not exceed 30 days from the date when the decision was issued, which is in clear contrary.

2.7.2 Procedural safeguards under Article 31 Article 31 guarantees the concerned persons access to a administrative or other judicial redress procedure regarding decisions taken on ground of public policy, security or health. Transposition of Article 31 of the Directive to the Slovak legal order can be considered effective. As an effective transposition we can find transposition of its section 1 according to which the person concerned shall have the access to judicial and administrative redress procedure in the host Member State to appeal against or seek review of any decision taken against them on the ground of public policy, public security or public health, and section 4. Pursuant to section 4 of Article 31 of the Directive, the Member States have possibility to exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or public security or when the appeal or judicial review concerns a denial of entry to the territory. The Slovak Republic does not use the possibility to transpose this section to the concrete provision of the Act 48/2002, but this technique is in accordance with the Directive. Act 71/1967 the Administrative Procedure Act entitles generally the party to the proceeding to attend the hearing and present evidence. The Slovak legal system, especially Act 71/1967 on Administrative Procedure, gives the general possibility to appeal against administrative decisions. In certain cases it is possible to have a decision reviewed by the respective court. The condition of the judicial review is the fact that interested person had exhausted all the ordinary means of appeal against the administrative decision and the administrative decision has become legally valid. However, the national law does not state on what grounds such redress may be exercised. It is therefore open-ended and wider than the Directive. It means that an appeal against administrative decision may invoke any reasons, including questions of law as well as questions of fact. Slovak legislation does not explicitly include public policy, public security or public health as the grounds of appeal, however; also those might serve as the ground for appeal.



In general, a decision against which an appeal was lodged within the necessary time limit is suspended. However, when a special law states otherwise, such as in case of the Act 48/2002, the decision has no suspensive effect. According § 57 section 3 of Act 48/2002 the appeal against the decision on administrative expulsion has no suspensive effect. For the mutual relation between this Code and Act 48/2002 please see Article 3 (2) (b). Administrative decisions are to some extent open to review by the respective court. A court decision may result in withdrawing the administrative decision in question. An appeal against administrative decision may invoke any reasons, including questions of law as well as questions of fact. The condition for the judicial review is that a person has exhausted all the ordinary means against the administrative decision and the administrative decision has become legally valid. However, the insufficiency of the national law is that the act does not state on what grounds such redress may be exercised. It is therefore open-ended and wider than the Directive. It means that an appeal against administrative decisions may invoke any reasons, including questions of law as well as questions of fact. Slovak legislation does not explicitly include public policy, public security or public health as the grounds of appeal, however they might serve as the ground for appeal. An appeal against an administrative decision will be preceded under the Act 71/1967 - the Administrative Code, as it is an administrative proceeding. The final decision of the administrative body can be reviewed by the competent court. Such revision will be governed by the Act 99/1963 - the Civil procedure code, as this phase is a civil proceeding. § 250 c (1) of Act 99/1963 Coll. the Civil Procedure Code regulates judicial review of administrative decisions. Specific grounds for such review are missing, but the president of senate may suspend the enforcement of a decision, if the immediate enforcement threatens with a serious damage. Also the Act 71/1967 the Administrative Procedure Act states that the authority executing the enforcement of the decision may for serious reasons upon proposal of the party or from his own or of other initiative postpone the enforcement of the decision. Serious reasons for the postponement are not specified.

2.7.3 Exclusion orders (Article 32) Article 32(1) gives the expelled persons a possibility to after a reasonable period, and in any event after three years from enforcement of the exclusion order, establish that there has been a material change in the circumstances which justified the decision ordering their exclusion. Transposition of this provision is incomplete. Pursuant to the Act 48/2002 §61(2) the EEA citizen and privileged foreigner may submit an application for lifting of the exclusion order putting forward arguments establishing that there has been a significant change of circumstances that justified the decision ordering the expulsion and the prohibition of the stay was imposed to him. Act 48/2002 does not transpose the time limit for submitting an application for lifting of the exclusion order stated in the directive (“after three years from enforcement of the final exclusion”), so we can find the provision of the act as more favourable. The EEA citizen and privileged foreigner may submit an application for lifting of the exclusion order whenever after expulsion. The existence of significant change of the circumstances that justified the expulsion is the necessity. The act stipulates other time limits, the time limit for the Ministry of Interior Affairs for deciding on the application (180 days after receipt of the application). The Act 48/2002 does not transpose all requirements of this Article. This Article relates only to persons excluded on grounds of public policy or public security. In the Act 48/2002 there is no requirement of public policy or public security reasons for expulsion, so also in case that the expulsion



was done for other reasons then the public policy or public security, the EEA citizen and the privileged foreigner may submit the application for a cancellation of the decision. Pursuant to section 2 of Article 32, excluded persons shall have no right of entry to the territory of the Member State concerned while their application is being considered. According to the §6(1)(a) An EEA citizen or his/her family members right of entry, may be rejected only if he/she is a persona non grata . This treatment is not automatic; it is up to the police authority which may decide not to leave the foreigner to enter the country because of the status of persona non grata.

2.8 Final provisions (Chapter VII)

2.8.1 Publicity (Article 34) Pursuant the wording of the Directive, Member States shall disseminate information concerning the rights and obligations of the Union citizen and their family members on the subjects covered by the directive, particularly by means of awareness-raising campaigns conducted through national and local media and other means of communication. The Ministry of Interior Affairs provides information on its web site (www.minv.sk). Further information can be found in the central gateway to the public administration (/www.portal.gov.sk) and information about employing of European citizens can be found in the web site of the Ministry of employment, social affairs and family (www.employment.gov.sk).These information are provided in Slovak language.

2.8.2 Abuse of rights (Article 35) Act 48/2002 transposed this provision more favourably. Article 35 gives to Member States the opportunity to adopt necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriage of convenience. Slovak Republic has seized this opportunity and this article has been transposed by Act 48/2002 (§45b sec.5(c) and §45b sec. 8(c)). Pursuant to the Act 48/2002 the police department shall refuse the grant of the first stay permission to the privileged foreigner, if there is a reasonable suspect that the privileged foreigner concluded a marriage with the aim to obtain permission to stay. In addition, the police authority shall withdraw the first stay permission granted the privileged foreigner, if it discovers that the privileged foreigner concluded a marriage with aim to obtain the permission on stay. The relevant provision of the act is more favourable, whereas the Slovak regulation relates only to the privileged foreigner, not the EEA citizen.

2.8.3 Sanctions (Article 36)

Pursuant to the Article 36 of the Directive, Member State has the obligation to adopt provisions on the sanctions applicable to breaches of national rules adopted for the implementation of the Directive. Under the Act 48/2002 in case of breaching the specified obligations, person commits a misdemeanour. The only provisions that includes sanctions for breaching the rules adopted for the implementation of the Directive are

- the obligation of the privileged foreigner, intending to prolong the stay, to apply for the further stay permission not later than 60 days before the expiry of the first stay permission and

- the obligation of the EEA citizen and the privileged foreigner to register within ten days after the entry to the Slovak Republic with the respective police authority. In general most of the provisions used for transposition of the Directive are voluntary.



Imposing fines for its breach is up to the discretion of the police authorities. According to the Act 48/2002 the police authority may impose a fine up to 50 000 SKK [1660 EUR]. According to the §77(5) of the Act 48/2002 when the police authority imposes the penalty, it should take into account the gravity, duration of the infringement and the consequences of the illegal activity and also if the infringement was repeated or there were more infringements. However, the maximum amount of the sanction can be considered as a disproportionate sanction.

2.8.4 More favourable provisions (Article 37) Act 48/2002 has not transposed the possibility to use more favourable provisions explicitly. However, based on the above analysis a variety of provisions are more favourable than wording of the Directive.

2.8.5 Transposition (Article 40)

Article 40 was transposed effectively. In general, the transposing legislation entered into force in accordance with the Directive, thus no late transposition occurred. Act no. 558/2005 Coll. amending the Act no. 48/2002 Coll. of Foreigners Stay and the Act no. 381/1997 Coll. on the Travel Documents, which transposed most of the provisions of the Directive, entered into force on 15 December 2005. The Act no. 381/1997 Coll. was replaced by a new Act no. 647/2007 Coll. on travel documents Act 381/1997 has been amended by the Act 653/2004 transposing the Directive 2004/38/EC. Consequently it has been replaced by the Act 647/2007 which entered into force as of 1 January 2008.

ANNEX I: Table of concordance for Directive 2004/38/EC

ANNEX II: List of relevant national legislation and administrative acts

• Act No 48/2002 on foreigners stay, Collection of laws No 23/2002, p. 518, as amended (Zákon č. 48/2002 Z.z. z 13. decembra 2001 o pobyte cudzincov a o zmene a doplnení niektorých zákonov, Uverejnené v Zbierke zákonov č. 23/2002 strana 518|

• Act No 647/2007 on travel documents and modification and amendment of several acts, Collection of laws No 263/2007, p. 4622 (Zákon č. 647/2007 Z.z. z 5. decembra 2007 o cestovných dokladoch a o zmene a doplnení niektorých zákonov, Uverejnené v Zbierke zákonov č. 263/2007 strana 4622)

• Act No 381/1997 on travel documents, Collection of laws No 145/1997 p. 3547) – repealed (Zákon č. 381/1997 Z.z. zo 17. decembra 1997 o cestovných dokladoch, Uverejnené v Zbierke zákonov č. 145/1997 strana 3547)

• Act No 71/1967 on Administrative Procedure (Administrative Procedure Act, Collection of laws No 27/1967, p. 284) – as amended (Zákon č. 71/1967 z 29. júna 1967 o správnom konaní (správny poriadok), Uverejnené v Zbierke zákonov č. 27/1967 strana 284)

• Act No 145/1995 on administrative Fees, Collection of laws No 49/1995 p 1410) as amended (Zákon č. 145/1995 Z.z. z 22. júna 1995 o správnych poplatkoch, Uverejnené v Zbierke zákonov č. 49/1995 strana 1410)

• Act No 365/2004 on equal treatment in certain aspects and on protection against discrimination, Collection of laws 153/2004 p.3579) – as amended (Zákon č. 365/2004 Z.z. z 20. mája 2004 o rovnakom zaobchádzaní v niektorých oblastiach a o ochrane pred diskrimináciou a o zmene a doplnení niektorých zákonov (antidiskriminačný zákon), Uverejnené v Zbierke zákonov č. 153/2004 strana 3579)

The laws can be found at: http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_maxi_zak_fr0.htm

ANNEX III: Selected national case law Slovak Republic has not developed a compact set of judicial decisions regarding the EU citizens and their family members, yet. However, one decision may be interesting from the point of view of the public order. Judgement of the Supreme Court of the Slovak Republic from 28 October 1998, file number 6 Sž 53/98, published in the volume n. 65/1999, book 3, page 59) According to this decision the mere fact that the foreigner has committed a contravention may not be a reason not to permit the entry of the foreigner in the territory of the Slovak Republic according to § 12 (1) (i) of Act n. 73/1995 (previous act on foreigner stay, which has been replaced by the valid Act 48/2002) from the reasons of maintenance of the public order. It is not sufficient to quote a law, but it is necessary, in the interests of the participant of the proceedings and his rights, that the decision contains a concretisation, in what the necessity of maintenance of public order consists. It is doubtless , that § 19 (a) of Act n. 73/1995 provides a general duty of the foreigner to keep the laws and other generally binding legal acts valid in the territory of the Slovak Republic. Each violation of them however must be considered individually, concretely according to § 12 of quoted act, which implies such a procedure. As the accused person did not proceed in this sense in accordance with the law, he evaluated the case incorrectly and his decision was not motivated enough. The Supreme Court of the Slovak Republic according to the § 250j (2) of the Civil Procedure Act decided by its judgement, annulled the decision impugned by the action for the incorrect legal evaluation of a case and insufficiency of proofs. The case law can be found at; http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_maxi_jud_fr0.htm

http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_maxi_jud_fr0.htm

ANNEX IV: Application Forms

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